VAISHNO DEVI CONSTRUCTION REP. THR. SOLE PROPRIETOR (D) THR. LRS & ANR. versus UNION OF INDIA & ORS.

Citation: [2021] 10 S.C.R. 59 · Decided: 21-10-2021 · Supreme Court of India · Bench: SANJAY KISHAN KAUL · Disposal: Appeal(s) allowed

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Judgment (excerpt)

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VAISHNO DEVI CONSTRUCTION REP. THR. SOLE
PROPRIETOR (D) THR. LRS & ANR.
v.
UNION OF INDIA & ORS.
(Civil Appeal No. 18278 of 2017)
OCTOBER 21, 2021
[SANJAY KISHAN KAUL AND B. R. GAVAI, JJ.]
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
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[2021] 10 S.C.R. 59
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SUPREME COURT REPORTS
[2021] 10 S.C.R.
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]
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