The judgment debtor filed an appeal before the High Court.
8,018 7 0 for the debt and interest and the sum of Rs.
The only substan tial question raised wag whether the respondent companypany were the transferees of the decree within the meaning of Order XXI, rule 16.
Evidence was led at the hearing and the Court held the document duly executed by the two partners of Habib Sons and as such duly proved.
1389 the appellant companypany was number a transferee of the decree.
In Abdul Kader v. Daw Yin supra in July 1928 the plaintiff obtained a decree that a certain sale deed be set aside on payment of a certain sum and for possession of the properties and mesne profits.
per annum from the date of the decree until payment.
By a companypromise decree M was awarded a portion of the property.
67 of 1952 from Original Decree arising out of Order dated the 20th November 1951 of the City Civil Court, Bombay, in Summary Suit No.
So far there can be numberdifficulty but the learned Judges went on to say, without, I think, any good reason, that transfer by operation of law was obviously intended to be companyfined to testamentary and intestate succession, forfeiture, insolvency and the like.
The respondent companypany did number take steps under 0.
Amongst other things, he denied that the document in question had been executed or that the document transferred the decree to the respondent companypany.
On the 11th December 1950 the Custodian of Evacuee Property, Bombay, informed the respondent companypany that by an order made on the 2nd August 1950 the Additional Custodian of Evacuee Property had companyfirmed the transaction of transfer of the business of Habib Sons to the respondent companypany.
Evidently, the two partners migrated from India to Pakistan and their properties vested in the Custodian of Evacuee Property.
The position was clarified by a later decision of the High Court of Bombay in Bhagwant Balajirao and Others v. Rajaram Sajnaji Others 3 where Rajadhyaksha and Macklin, JJ.
The appellant companypany thereupon preferred, this second appeal to the High Court.
it was held that the appellant companypany companyld number apply under Order XXI, rule 16, for that rule companyld number properly companyer a case where there was numberdecree at the date of the assignment of the property and the term decree holder companyld number companyer a party who, in equity, might afterwards have become entitled to the rights of the actual decree holder.
Then the judgment debtor Abdool died.
per annum till payment.
8 of 1953 under the Letters Patent, against the decree dated the 23rd day of September 1952 of the said High Court in Appeal No.
1949 when that summary suit was still pending a document was executed whereby it was agreed that the two partners would transfer and Messrs Raw Cotton Company, Limited, hereinafter called the respondent companypany 1372 would accept the transfer of, inter alia, all book and other debts due to them in companynection with their business in Bombay and full benefit of all securities for the debts and all other property to which they were entitled in companynection with the said business.
One of the points raised by the companytesting defendant was that this subsequent suit which was one for a, pure declaration of title was bad under section 42 of the Specific Relief Act inasmuch as the plaintiff did number pray for companysequential relief in the shape of a permanent injunction restraining him, the companytesting defendant, from executing the decree.
XXII, r. 10 of the Code of Civil Procedure to get themselves substituted as plaintiffs in the place and stead of Habib Sons, the plaintiffs on record, but allowed the suit to be companytinued in the name of the original plaintiffs.
Appeal from the Judgment and Decree dated the 10th day of November 1953 of the High Court of Judicature at Bombay in Appeal No.
The Munsiff rejected the application but the District Judge reversed his order.
The appellant companypany did number get themselves substituted as plaintiff but allowed the suits to proceed in the names of the original plaintiffs who were the transferors.
The Respondents did number take any steps under Order XXII, rule 10 of the Code of Civil Procedure to bring themselves on the record of the suit as plaintiffs in place and stead of Habib Sons and a decree was passed in favour of Habib Sons against the Appellant on the 15th December, 1949 for Rs.
The appeal was heard by Dixit, J. Before him the execution of the document was number challenged and numberhing further need be said about that.
The matter was tried on evidence and the execution of the document was proved by the evidence of an attesting witness which has been accepted by the executing Court.
On or about the 25th April, 1951 the respondent companypany presented before the Bombay City Civil Court a tabular statement purporting to be an application for execution under Order XXI,rule 11 of the Code of Civil Procedure.
The respondent Savla thereupon without having obtained, amicably or by execution of his decree, an actual assignment of the mortgage decree sought to execute that decree.
Objection was taken, inter alia, that Wajed was number the legitimate son of Wahed.
Both the partners of Habib Sons were declared evacuees and by his order dated the 2nd August, 1950 the Custodian of Evacuee Property, Bombay companyfirmed the transaction of transfer of the business of Habib Sons to the Respondents as evidenced by the agreement dated the 7th February, 1949.
That application was by the Respondents as assignees of the decree and the mode in which the assistance of the Court was required was that the Court should declare the Respon 1408 dents the assignees of the decree as the decretal debt along with other debts were transferred by Habib Sons to them by a deed of assignment dated the 7th February, 1949 which was companyfirmed by the Custodian of Evacuee Property, Bombay and should order them to be substituted for the plaintiffs.
Later on, the respondent Savla brought a suit against the appellant Pandu and Tuljaram.
On the 10th May 1951 the Bombay City Civil Court issued a numberice under Order XXI, rule 16 of the Code to Habib Sons, who were the decree holders on record, and Jugalkishore Saraf, who was the defendant judgment debtor, requiring them to show cause why the decree passed in the suit on the 15th December 1949 in favour of the plaintiffs and by them transferred to the respondent companypany, should number be executed by the said transferees against the said defendant judgment debtor.
This must follow from the very nature of a declaratory decree.
A numberice under Order XXI, rule 16 of the Code of Civil Procedure was issued by the Court on the 10th May, 1951, calling upon Habib Sons and the Appellant to show cause why the decree passed in favour of Habib Sons and by them transferred to the Respondents, the assignees of the decree should number be executed by the said transferees against the Appellant.
8,428/7/ inclusive of interest and companyts with interest on judgment at 4 per cent.
In the last companyumn of the tabular statement, under the heading The mode in which the assistance of the Court is required, the respondent companypany prayed that the Court be pleased to declare the Applicants the assignees of the decree as the decrement debt along with other debts bad been transferred by the plaintiffs to the Applicants by a deed of assignment dated the 7th February 1949 which was companyfirmed by the Custodian of Evacuee Property, Bombay, and order them to be substituted for the plaintiffs.
held, following Radha Nath Das v. Produmna Kumar Sarkar 1 that an application made by an assignee of a decree must under Order XXI, rule 16 be for the execution of the decree and number merely for the recognition of the assignment and for leave to execute the decree.
The High Court allowed the appeal and by its decree declared that Wahed was in his lifetime and those who became his heirs were entitled to recover the properties in suit.
In that suit a decree was passed directing Tuljaram to transfer the mortgage decree to Savla.
In Pandu Joti Kadam v. Savla Piraji Kate 1 one Tuljaram obtained a decree on a mortgage against the appellant Pandu Joti.
233 of 1948.
The learned Judge answered the question in the affirmative on the authority of the decisions of the Bombay High Court in Purmananddas Jivandas v. Vallabdas Wallji 1 and in Chimanlal Hargovinddas v. Ghulamnabi 2 and affirming the order of the executing Court dismissed the appeal.
The judgment debtor under the decree in the first suit was number made a party defendant in this suit.
Habib Sons being the plaintiffs on record the decree was passed in their favour.
The appellant was number brought on the record but the suit proceeded in the name of the executors.
The same remarks apply to the other two cases of Ananda Mohon Roy v. Promotha Nath Ganguli supra and Chimanlal Hargovinddas v. Ghulamnabi Supra relied on by learned companynsel for the respondent companypany.
31, 272 13 5 which was made a first charge on the Wadi properties.
The defendant judgment debtor showed cause by filing an affidavit affirmed by him on the 15th June 1951.
CIVIL APPELLATE JURISDICTION Civil Appeal No.
212 of 1954.
A companymunication to that effect was addressed by the Custodian to a Director of the Respondents on the 11th December 1950.
On the 24th November 1939 C applied for execution of the decree.
This objection was overruled and it was held that Abedoonissa was entitled to execute the decree for herself and as the guardian of Wajed.
On the 15th December 1949 a decree was passed in the summary suit for the sum of Rs.
The Court passed a decree upon the award on the 1st September, 1939.
On the 23rd January 1873 a decree was passed for the plaintiffs on the record, i.e. the executors, for Rs.
There was, in that companyumn, numberspecification of any of the modes in which the assist 1373 ance of the Court might be required as indicated in clause j of Order XXI,rule 11 of the Code.
Abedoonissa applied for execution of the decree for herself and for one Wajed who was said to be the posthumous son of Wahed born of her womb.
Subramania Iyer and K. R. Choudhry, for the appellant.
After the decree was passed the respondent applied to execute the decree as the transferee of the decree.
The parties came to a companypromise and a joint petition signed by the father and the sons was filed in Court in which it was stated that the sons had numberobjection to surrender all their rights in the decree to the father.
It was held that although Savla had a legal right, by executing his own decree, to companypel his judgment debtor Tuljaram to assign to him the mortgage decree obtained by Tuljaram, such 1 1925 27 Bom.
On the 25th April, 1951 the Respondents filed in the City Civil Court, Bombay an application for execution under Order XXI rule 11 of the Code of Civil Procedure to execute the decree obtained by Habib Sons against the Appellant.
During the pendency of the appeal Wahed died and his widow Abedoonissa was substituted in the place of Wahed for prosecuting the appeal.
per annum said to be due by him to the firm in respect of certain transactions in gold and silver effected by the firm as pucca adatias.
The appellant thereupon applied for execution of the decree under section 232 of the Code of 1882 companyresponding to our Order XXI, rule 16 , as transferee of the decree.
The Appellant showed cause and companytended 1 that the deed of assignment in favour of the Respondents was number executed by Habib Sons and 2 that the assignee of the subject matter of the suit and number of the decree itself was number entitled to apply for leave under Order XXI, Rule 16 of the Code of Civil Procedure.
On the 7th February,.
The following Judgments were delivered.
Pending those suits Hennessey and his brothers transferred the Zamindari to the appellant companypany.
March 7.
Two persons named Mahomedali Habib and Sakerkhanoo Mahomedali Habib used to carry on business as merchants and pucca adatias in bullion and companyton at Bombay under the name and style of Habib Sons.
410 for companyts of the suit, aggregating to Rs.
The trial Court dismissed the suit and Wahed appealed to the High Court.
7,113 7 0 with interest at 6 per cent.
The Chamber Summons was adjourned to Court in order to take evidence whether the document in question was executed by Habib Sons or number.
J. Umrigar, J. B. Dadachanji and Rajinder Narain, for the respondent.
In 1948 that firm instituted a suit in the Bombay City Civil Court, being Summary Suit No 233 of 1948, against the present appellant Juga lkishore Saraf, a Hindu inhabitant carrying on business at Bombay, for the recovery of Rs.
Eventually, decrees were passed in favour of Hennessey and his brothers.
8,428 7 0, and for further interest at 4 per cent.
