LOONKARAN SETHIYA versus STATE BANK OF JAIPUR & ORS.

Citation: [1969] 1 S.C.R. 122 · Decided: 25-04-1968 · Supreme Court of India · Bench: J.M. SHELAT · Disposal: Dismissed

Judgment (excerpt)

122 
LOONKARAN 'SETHll;A 
v. 
STATE BANK OF JAIPUR & ORS. 
April 25, 1968 
[J. M. SHELAT, K. S, HEGDE AND A. N. GROVER, JJ.J 
lndialf Contract Act 9 of 1872, s. 20~Debtor giving 
power 
o'f 
aJtorncy to credltor bank to execute a decree in his favour-It is power' 
Coupled with inter.est and ir'revocable-Bank an !!quitable assignee-Can 
execute decree under Code of Civil Procedure, s. 146. 
The appellant was indebted to the respondent Bank. He executed a 
powe.c of abtorney in favour of the bank giving it authority to execute a 
decree \,Vhich he had obtained in his favour. The bank filed an appJica-
tion fO< the execution of the decree in the appellant's name, the applica-
tion being signeq by the manager of the Bank as 
holding power of 
attorney. The appellant o)ljected to <he execution. 
His objections were 
over-ruled by the. executing court as well as the High Co4rt. In appeal 
to this Court, 
HELD : (i) The power given- by lhe appe!lant in favour of the' Bank 
was a power coupled with interest and in view of s. 202 of the InOian 
·Contract Act it was irrevocable. [126 DJ 
' 
(ii) The interest of the appellant under the decree could ·not be said 
to have been transferred to the Bank either in writing or by operation of 
Jaw. 
But the power of. attorney was an engagement to pay out of the 
particular fund the debt dUc to the Bank and hence the same constituted 
an equltable assignment of the amount due under the decree or so much 
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of th:it amount as ·was necessary for discharging the debts due to it. [127 A 
E 
CJ 
Watson v. The Duke of -Wellington, [1830] 39 E.R. 231 and Burn v. 
Carvalho, [1839] 41 E.R. 265, applied. 
lagabhai Lallubha/ v. R1istamji Na.ronv011ji, [1885] l.L.R. IX Born. 
311 and Praltlad Pd. Modi v. Tikaitni Faldani Kumari, A.l.R. 
[1956] 
Patna 233, approved. 
(iii) An equitable assignee Of a decree who cannot- have the benefit 
of 0. XXT, r. 16 of the ~ 
of Civil Procedure can still execute the 
decree under s. 146 of the Code. [128 FJ 
Jug11/kislwre Saraf v. Raw Cot/011 Co. Ltd. [1955] I S.C.R. 1369, 
affirmed. 
p 
(iv) Although t11e application had been made by the bank as the 
G 
appellant's agent. the bank \\·as also entitled to file it and carry it on in 
its oWn right. 
It would serve no useful purpose to direct the preselbl: 
application to be closed merely because it was- made in the n&me of the 
appellant. (129 A-B] 
. 
CIVIL APPELLATl,l JURISDICTION: 
Civil Appeal No. 644 of 
1965. 
Appeal by special leave from the judgment and order dated 
July 10, 1963 of the Allahabad High Court i11 Execution First 
Appeal ,No. 26 .of 1961. 
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A 
B 
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II 
LOON.KARAN V. STATE BANK, JAIPUR (Hegde, J.) 
12:> 
M. C. Chag/a, B. Dutta, and 0. C. Mathur, for the appellant. 
C. B. Agarwala and V. D. Mahajan, tor respondent No. 8-· 
the State Bank of Jaipur & Ors. 
The Judgment of the Court was delivered by 
Hegde, J.-This appeal by special leave arises from the deci- · 
sion of the Allahabad High Court in execution first appeal No. 26· 
of 1961 on its file. 
The appellant is the decree-holder. 
Th.e· 
contesting respondent is the State Bank of Jaipur--to be herein-
after referred to as the Bank-; other respondents are not inte-
rested in the decision in this appeal. 
The material facts of the case are few. 
The appellant was 
indebted to the Bank. 
On March 27, 1959, .be executed a power 
of attorney in favour of the Bank. 
That power of attorney inter 
alia recited :-
"AND WHEREAS I am very heavily indebted to 
the Bank of Jaipur Limited, Agra branch and my liabi-
lity is partly secured by the pledge of my goods and 
partly by the equitable mortgage of my and my mother's 
immovable properties with the said Bank; 
AND WHEREAS a major part of my said liability 
is unsecured; 
AND WHEREAS I have agreed to appoint the 
Bank of Jaipur Lid. to be my true and lawful attorney 
to execute tire said decree in suit Nos. 7 6 of 1949 c( with 
which we are concerned in this appeal) which may ulti-
mately be passed in my said appeal and to do the 
following acts, deeds, matters and things for me, on my 
behalf and in my name and to credit to my account the 
sum or sums which may be realised in execution of or· 
under the said decrees; 
NOW KNOW YE ALL men and these presents wit-
ness that I do hereby irrevocably constitute, nominate 
and' appoint the said Bank of Jaipur Limited. and/ or 
any principal officers and/ or any other person or per-
sons that may be appointed by the said Ban

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