Report No. 54
Recommendation as to proceedings under Article 226
1-O.31. It is desirable to exclude the applicability of section 141 (by suitable amendment) in respect of proceedings under Article 226 of the Constitution.
Amendment of section 141
1-O.32. In the light of the above discussion it is desirable that an express amendment1 should be made in section 141
(a) to include in its scope, proceedings under Order 9;
(b) to exclude from its scope, proceedings under Article 226 of the Constitution.
1. Amendment not drafted.
Amendment of section 141
1-O.32. We, therefore, recommend that an Explanation should be inserted in section 141 as follows:-
"Explanation.-In this rule, the expression "proceeding" includes proceedings under Order 9, but does not include proceedings under Article 226 of the Constitution."
1-O.33. Section 145 was considered in the earlier Report,1 and an amendment recommended. We agree with the earlier Report.
1. 27th Report, note on section 145.
Section 146 and Order 21, rule 16
1-O.34. The general principle that a transferee succeeds to the right of his predecessor, is to be found in section 146 of the Code, which is as follows:-
"146. Save as otherwise provided by this Code or by any law for the time being in force, where any proceeding may be taken or application made by or against any person, then the proceedings may be taken, or the application may be made by or against any person claiming under him."
The special provision as to the execution of decrees by assignees of the decree is contained in Order 21, rule 16, which provides that a decree may be executed by assignees, if there is an assignment of the decree in writing. The question has arisen whether a person who does not have a written assignment of the decree assigned (Order 21, rule 6), but who has succeeded to the decree holder's right, is entitled to execute the decree under section 146.
A conflict of decisions
1-O.35. A Madras case1 illustrates the conflict. In that case P (through her attorney, the contesting respondent) filed a suit in Madurai against 29 defendants for delivery of possession of certain property. A decree was passed in 1944. Pending the appeal, P transferred all her rights in the property in favour of the respondent, N for a certain sum of money. Later, P died, and N was brought on record in the appeal. N sought to execute the decree by filing Execution Petition 373 of 1950. This petition was opposed by one L, who claimed that he was the legal representative of the deceased P.L. contested the right of N, to execute the decree, and the executing court found that the dispute between N and L could not be gone into under section 47, C.P.C. It was held that N was not an assignee decree-holder and could not execute the decree.
N then filed a suit for the declaration that he was entitled to execute the decree; the suit was dismissed by the subordinate court. On appeal to the High Court, the appeal was compromised, and a compromise decree was passed in which N's right to execute the decree was recognised. Subsequently, an execution petition was filed by N which was dismissed. Subsequently, another Execution. Petition 209 of 1957 was filed, out of which the present second appeal arose.
A number of questions were raised, but only one is material for the present purpose. It was contended that N could not be said to be an assignee decree-holder, and therefore could not avail himself of Order 21, rule 15, C.P.C. and that, as the transfer of the property by the decree-holder was made after the decree was passed, he could not maintain an execution petition even under section 146, C.P.C. It was held that this was not a transfer of the rights of the decree in writing as required under Order 21, rule 16, C.P.C, but was a transfer of property after the decree was passed without transferring the rights in the decree. Reference was made to a Supreme Court case,2 in which it had been held that:
"Either the respondent company are transferees of the decree by an assignment in writing or by operation of law, in which case they fall within Order 21, rule 16, C.P.C. or they are not such transferees, in which case even they may avail themselves of the provisions of section 146, if the other condition is fulfilled."
Following this Supreme Court judgment, it was held in the Madras case that transferees, if they do not fall within the provisions of Order 21, rule 16, may avail themselves of the provisions of section 146. Further, it was held that this would also include a transferee of the property after the decree is passed. And, Kailasam J. in the Madras case referred to above3 did not accept the interpretation put by Jagadisan, J. in an earlier case4 on the 1955 Supreme Court case.5
In that case it had been held by Jagadisan J. the true principle is, that a decree cannot be executed by anybody other than the decree-holder, except by an assignee who satisfies the requirements of Order 21, rule 16 and that section 146, C.P.C. cannot have the effect of overriding the provisions of Order 21, rule 16. The result was, that the contention that N being an assignee of the property after the decree was passed was not entitled to maintain an execution petition, was not accepted.
1. Ponniah Pillai v. Natarajan, AIR 1968 Mad 190 (Kailasam J.).
2. Jugalkishore Saraf v. Raw Cotton Co., AIR 1955 SC 376.
3. Ponniah Pallai v. Natarajan, AIR 1968 Mad 190 (Kailasam J.).
4. Sampath Mudaliar v. Sakunialammal, (1964) 3 MLJ 563 (Jagadisan J.).
5. Jugalkishore Saraf v. Raw Cotton Co., AIR 1955 SC 376.
1-O.36. The later Madras view is in accord with the view of the Andhra Pradesh,1 Patna2 and Kerala3 High Courts.
1. Satyanarayana v. Arun Naik, AIR 1955 AP 81.
2. Ramnath v. Anardei Devi, AIR 1964 Pat 811.
3. Mani Davasia v. Varkey Searia, 1960 Ker LT 1077.
Recommendation as to Order 21, rule 16
1-O.37. In the above state of the case-law, it appears to be desirable to amend Order 21, rule 16, to make it1 clear that it does not affect the provisions of section 146, and a transferee of rights can obtain execution of the decree without a separate assignment of the decree.
1. To be carried out under Order 21, rule 16.
1-O.38. With reference to section 148, we have taken the opportunity of studying judicial decisions during the last ten years, including a judgment of the Supreme Court1 but we, do not see need for any amendment.
1. Mahant Ram v. Ganga Das, AIR 1961 SC 882.
Section 148A (New) (Caveat)
1-O.39. In order that a party who wishes to indicate his intention to have notice of an intended application by an adverse party may be authorised to do so, a provision for caveat may be, in our view, useful. The relevant provision1 in the Supreme Court Rules2 is intended for cases where no appeal is pending, but a similar provision, modified so as to be applicable to cases, where a suit is pending as well as to those where a suit is about to be instituted, would be helpful.
1. Order 19, rule 2, Supreme Court Rules.
2. Cf. High Court Arrears Committee Report, (1972), Vol. I, p. 56, Chapter 5, para. 25.
1-O.40. Accordingly, we recommend the insertion of the following new section in the Code:-
"148A. (1) Where an application is expected to be made, or has been made, in a suit instituted or about to be instituted in a court, any person claiming a right to appear before the court on the hearing of such a application may lodge a caveat in respect thereof, and shall thereupon be entitled-
(a) to receive from the Court notice of making of the application, if at the time of the lodging of the caveat such application has not yet been made; and
(b) if and when the application has been made, to require the applicant to serve him with copy of the application and to furnish him, at his own expense, with copies of any papers filed by the applicant in support of his application.
(2) The caveator shall forthwith, after lodging his caveat, give notice thereof to the applicant, if the application has been made."