LexJUGALKISHORE SARAF versus RAW COTTON CO. LTD.
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- S.C.R. SUPREME COURT REPORTS 1369 JUGALKISHORE SARAF 1. ,.! ' v: RAW COTTON CO. LTD. [S. R.' DAs,' BHAGW4TI and· IMAM JJ.] Code 'of Civil Pr6cedure (Act' V ~f 1908), s. 146; Order XXI, rule 16-Debt transferred pending ·suit thereon-Decree not mentioned in deed-Execution of decree-Application by transferee-Applica- bility .of, Or_det: XX!, rule .16 . and s. · 146-Equitable principles-:- Transfer of Property, Act (IV ,of 1882), ss. 3, 5, 8. and 1~0. H si. S filed a suit against th~ appellant for recovery of money and during the. pendency of the .suit a document was executed on the 7th f'.ebruary, 1949,. wher~.by. H & S transferred to the respondents all book and othe,r debts . due to them together with all. securities for the debts and all other property to which they were entitled in con- nection with their ,.b:usiness. in. Bombay. One· of the book debts was the subject matter of .the suit, but there was no mention in that ·docu~ent of the , sirit pr . th~ decree to. be passed in the suit.. The respondents did. not .take. any .steps under Order XXII, rule 10, of the Code of Civil Procedure. to get themselves substituted as plaintiffs in the place of H. & S, but allowed the 'suit to be continued in the name of .the original plaintiffs, and on the 15th December, 1949, a decree was passed, in favoµr of H & S against the appellant. On the 25th April, 1951, the rcospondents filed 1n. the City Civil Court, Bom- bay, an application for execution of the decree under Order XXI, rule· 11 of the Code, and a notice under Order XXII, rule 16 was issued by the Court calling. upon H & S and the appellant to' show cause why the decree' ~hould not be executed by the transferees, the respondents. The appellant contended inter . alia that as the respon- dents were only the assignees of the debt which was the subject- matter of .the suit .and not of the decree itself they were not entitled to execute the decree. · · Held, that the respondents as the transferees of the debt which was the subject-matter of the suit were entitled to make an applica- tion for execution of .the decree under section 146 of the Code of Civil Procedure as persons claiming under the decree-holder. The effect of the expression "save as otherwise provided In th'is Code" contained in section 146 is that a person cannot make an application under section 146 if other provisions of the Code are applicable to it. Per DAs and IMAM J)., BHAGWATI J. · dissenting.-Order XXI, rule 16, by the first alternative, contemplates the actual trans- "fer by an assignment in writing of a decree after it is passed and while a transfer of or an agreement to transfer a decree that may be passed in future may, in equity, entitle the transferee to claim the beneficial interest in the decree after it is passed, such ·1955 111arch 7 1955 ]ugalkisho;e ·saraf v. Raw Cotton Co. Ltd. 1370 SUll!YEMii: C0URT REPORTS [J1)55] equitable transfer does ;q.o~1 ren.4er I ~he: ,1'a.ns.~ree 1 a transferee of the decree by assignment in writing within the ffieaning of Order XXI, rule 16. ·, '.· , ,,. .· .. 1 ··~ ., 1 f. , , Per DAs J.-The transfer in writing of I a property which is the subject-matter of a su.it wi~o~t. in terms transferring the decree passed or to be passed in the 'sUit does ndt entitle the' transferee to apply £@r ·irxecution of the .decre~ .uqder Order._ ~XI,, ~ule . .l~, as a tr;insferee. o~ the decree._Py .;in assignment in,Vfriting. · If :by ·reason· of any provision of law, st<~tu,tory or ·other\visc!, interest in property passes from · one person . to another, ·. tliere is a transfer of ·the property by oper.ition of law; There is no warrant for confining transfers "by operation of law',' to the three cases of de;:i.th, devolution or sutcession ·or' to transfers bY opera!ioh ·of sta- tutory lJ.ws only. If the dOcurrient ·i_n question'; could be" ConStrued to be .f transfer of or an .agfeement to transfer the· deCree ·to' be ·passed iri future~ then on the decree beiD;g passed, by opetation Of·.equity, the fespondellts would .become the 'trarisferees of the' dCcree ·by operation of law within the mfaning of Order XXI, rule· i6. ' Per BHAGWAT! ).-Section 5 Of the Transfer of Property Act defines a "transfer of property" ·as ·an act by which the t'.t;insferor conveys property in present or in future to the transferee or' trans- ferees. The Words "in preserit ·or in future" qualify the ·word "con- vey
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