Code of Civil Procedure, 1908 – Or.XXI, r.16 – Execution of Decrees and Orders – Application for execution by transferee of decree – Addition of the Explanation to Or.XXI, r.16 of the CPC, pursuant to recommendation made by the Law Commission of India in its 54th Report on the CPC in 1973 – The Explanation was inserted by Act 104 of 1976 [Code of Civil Procedure (Amendment) Act, 1976] w.e.f. 01.02.1977 – In Jugalkishore Saraf case, it was held that Or.XXI, r.16 contemplates the actual transfer of the decree by an assignment in writing executed “after the decree is passed” and thus, while a transfer of or an agreement to transfer a decree that may be passed in future may, in equity, entitle the intending transferee to claim the beneficial interest in the decree after it is passed, such equitable transfer does not relate back to the prior agreement and does not render the transferee a transferee of the decree by an assignment in writing within the meaning of Or.XXI, r.16 – Whether the subsequent amendments to Or.XXI, r.16 changed the position of law as laid down in Jugalkishore Saraf case – Held: The Explanation was so added due to conflicting High Courts’ decisions on the question, i.e., whether a person who does not have a written assignment of the decree, but who has succeeded to a decree holders’ right, is entitled to such decree u/s.146 CPC – The Law Commission recommended amending Or.XXI, r.16 to clarify that it does not affect the provisions of s.146 CPC and that a transferee of rights in the subject matter of the suit can obtain execution of a decree without separate assignment of the decree – The objective appears to be to not have multifarious proceedings to determine the issue of assignment, but to determine the issue of assignment in the execution proceedings itself – The objective of amending Or.XXI, r.16 by adding the Explanation was to avoid separate suit proceedings being filed therefrom and to that extent removing the distinction between an assignment pre the decree and an assignment post the decree – Once the legislative intent is clear, and the law is amended, then the earlier position of law cannot be said to prevail post the amendment – The Explanation clearly stipulates that nothing in Or.XXI, r.16 of the CPC would affect the provisions of s.146 and the transferee of the right in property which is subject matter of a suit may apply for execution of the decree without separate assignment of the decree as required by law – Decree.
Allowing the appeals, the Court
HELD: 1.1. It is an admitted position that the Explanation was added to Order XXI Rule 16 which did not exist earlier, pursuant to the recommendations made by the Law Commission of India in its 54th Report on the Code of Civil Procedure, 1908. The Explanation was so added due to conflicting High Courts’ decisions on the question, i.e., whether a person who does not have a written assignment of the decree, but who has succeeded to a decree holders’ right, is entitled to such decree under Section
146 of the CPC. [Para 24][70-A-B]
1.2. The Law Commission recommended amending Order XXI Rule 16 to clarify that it does not affect the provisions of Section 146 CPC and that a transferee of rights in the subject matter of the suit can obtain execution of a decree without separate assignment of the decree. The objective appears to be to not have multifarious proceedings to determine the issue of assignment, but to determine the issue of assignment in the execution proceedings itself. [Para 25][70-D-F]
2. The objective of amending Order XXI Rule 16 of the CPC by adding the Explanation was to avoid separate suit proceedings being filed therefrom and to that extent removing the distinction between an assignment pre the decree and an assignment post the decree. Thus, what has been discussed even in the judgment in Jugalkishore Saraf as a view based on the equitable principle was sought to be incorporated in Order XXI Rule 16 of the CPC by adding the Explanation, something which had not been done earlier. Once the legislative intent is clear, and the law is amended, then the earlier position of law cannot be said to prevail post the amendment. [Para 26][70-F-G; 71-A-B]
3. While considering the divergent views of the High Courts, the Law Commission took note of the fact that two different interpretations of Jugalkishore Saraf had been adopted. Thus, the Law Commission really sought to clarify the legal position so that the conflicting interpretation of the Supreme Court judgment would not survive. The Explanation clearly stipulates that nothing in Order XXI Rule 16 of the CPC would affect the provisions of Section 146 and the transferee of the right in property which is subject matter of a suit may apply for execution of the decree without separate assignment of the decree as required by law. [Para 27][71-B-D]
Jugalkishore Saraf v. M/s. Raw Cotton Co. Ltd. AIR 1955 SC 376:1955 SCR 1369 – referred to.
Penniah Pillai v. T. Natarajan Asari AIR 1968 Mad 190; K.N. Sampath Mudaliar v. Sakunthala Ammal 1964
2 MLJ 563; Prabhashinee Debi v. Rasiklal Banerji 1931 ILR 59 Cal 297; Purna Chandra Bhowmick v. Barna Kumari Devi AIR 1939 Cal 715; Satyanarayana v. Arun Maik AIR 1955 AP 81; Ramnath v. Anardei Devi AIR 1964 Pat 311 and Mani Devasia v. Varkey Scaria (1960) Ker. LT 1077 – referred to.
referred to
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
This page is for informational and research purposes only and does not constitute legal advice. Consult a qualified advocate for advice specific to your situation.