JUGALKISHORE SARAF v. Raw Cotton

The matter was tried on evidence and the execution of the document was proved by the evidence of an at the exe testing witness which has been accepted by rejected cuting Court. The executing Court, however, the second contention and made the notice absolute with costs and gave to the respondent company to execute the decree against the judgment-debtor. The judgment-debtor filed an appeal before the High Court. The appeal was heard by Dixit, J. Before him the exe cution of the document was not challenged and nothing further need be said about that. The only substan raised was whether the respondent com tial question transferees of the decree within the pany were rule 16. The learned Judge meaning of Order XXI, answered the affirmative on authority of the decisions of the Bombay High Court in Purmananddas f ivandas v. V allabdas W allji ( 1 ) and in Chimanlal Hargovinddas v. Ghulamnabi(2) and affirm ing the order of the executing Court dismissed appeal. The preferred a Letters judgment-debtor Patent Appeal before the High Court which was dis missed by Chagla, C.J., and Shah, J., two earlier decisions mentioned above. They, however, the question following (1) [1877] I. L. R. 11 Bom. 506. '(2) I.L.R.[19°46]Bom. 2;6. 13-90 S. C. India/59 1955 'Jugalkishore Saraf v. Raw Cotton Co. Ltd. 1374 SUPREME COURT .REPORTS [1955] •granteil, under article 133(1) (c) ·of the Constitution, a certificate of fitness for appeal to this Court. The prillcipal .question mged before us is as to' whether the to be 'the· 'transferees .can .claim ·respondent company CJf ·the decree within .the meaning of Order XXI, 16 of .the .Code of Civil Procedure. Order XXI, rule 16 of ·the Code of Civil Procedure, local ·amendments which are not material .omitting the for our .present purpose, ·provides :- ,_J if a "16. Where a .of the decree 'decree has been ilecree or, passed jointly in favour .CJf two or more persons, interest of any .decree-holiler in the decree is transferred by assignment in writing or by operation of law, ·the transferee may apply for execution the Court which passed it ; and the decree may be exe cuted in the same manner and subject if the application were made by such conditions as decree-holder. Provided .such interest ·as aforesaid, has assignment, notice <Of ,such application shall be given · to the trans feror and the judgment-debtor, and the decree not be executed until the Court has heard their objec tions {if any) to its execution : that, where the decree or transferred by .been .the that, where a decree two or more persons has the pay 'been it shall not be executed to . one of them, Provided ·also ment •of money against ttansforred against the others". The first rule. thing that strikes 'been passed and, transferred that a decree has that decree has been the reader is the sequence of events contemplated by It postulates, secondly, first, (i) by assign ment in writing 0r (ii) by operation of law. The car to read the dinal rule of construction of statutes . is statute the words used their ordinary, natural and gramma rby the legislature tical meaning. susceptible of another absurdity and meaning the Court may adopt .same. But'if no such alternative construction 'the Court must adopt interpretation. In the present case a literal construction · of the rule If, however, such a reading the words are is possible, that is by giving to rule of li~era1 the ordinary literally, 1955 Ju,galkishore ·Saraf v. Raw Cotton Go. Ltd. Das]. S.C.R. SUPREME COURT R~PQ;RTS 1375 transferred thus construed to be executed by therefore, for departing from It is quite plain that leads to no apparent absurdity and, can be no compelling reason golden rule of construction. Order XXI, rule 16 is the respondent company canot possibly contend that ¢e the decree them wa$, after ,.its now sought them by. an assignment ir:t writ passing, ing within the meaning of that rule, for the document .on the 7th February 1949 in question was' executed but the decree was passed subsequently on die 15th December 1949. Whether the decree after it was become the meaning of passed by operation of Jaw within rule or to have otherwise become entitled the benefit of it is a different matter which will be considered it is enough the moment there .had been no transfer of the decree to say to the respondent company by any assignment in writ the decree was passed, as contem ing executed after plated and required by Order XXI, rule Indeed, Dixit, J. conceded- they can claim later on. For transferees of .16. "If the language of Order XXI, rule 16 is striCtly it seems to me that the Respondents have construed, no case". And so did Chagla, C.J., when he said- " .... and it is perfectly clear that if one were there is no assignment of the construe rule 16 strictly decree in favour of the first respondent". taken the view that The learned Chief Justice, like Dixit, J., however, from the rule of strict or literal construction departed the Bombay as they felt pressed by High Court had consistently might be an equitable assignment of a decree which the assignee an assignee for the pur would constitute pose of rule 16 and that what the Court must consider is not merely a legal assignment but also an assign in equity. The equitable prin ment which operates ciple relied upon by the Bombay High Court is what had been enunciated by Lord Westbury in Holroyd v. Marshall(1) in the following words: (1) [1862] 10 H.L.C. 191, 2rn, 211. \ •. 1376 SUPREME cou1tr REPORTS [1955] 1955 Jugalkishore SaraJ v. Raw Cotton Co.Ud. Das]. "It is quite true ·that a deed which professes to· in existence at the time convey property which is not is as a conveyance void at law, simply because ·there to convey. So in equity a contract which is· nothiiig engages ·property, which is not in existence, cannot operate immediate alienation merely because there is nothing to transfer. to transfer as an But answering description there is no doubt reaffirmed by Jessel, real or personal, of which he if a vendor or mortgagor agrees to sell or mortgage property, the consi not possessed at the time, and he receives the contract,. and afterwards becomes deration possessed of property the contract, that a Court of Equity would compel him to perform the contract, and that transfer the beneficial the contract would, in equity, immediately the mortgagee or purchaser interest on .the property being acquired. This, of course, as is one of that class that the supposed contract of which a Court of Equity would decree the specific performance". same principle was The M.R., in Collyer v. Isaacs('): "A man can contract to come into existence in the future, and when it has come into existence, equity, to be done, fastens upon that property, which ought and the contract thus be.comes a complete assignment". Applying instant case the High Court came to the conclusion the document of the 7th February, 1949, on a proper reading of it, constimted an assignment of the decree. The reasoning, shortly put, is : that on a true construction in question amounted to a transfer of the decree that was expected to be passed that as the decree . was not in it operated as existence at the date of the document an agreement the decree when it would be to transfer that such an agreement could be enforced by passed, .~ suit for specific performance as to assign property which the above principles treating as done the pending suit, the document indicated by to assign facts of (1) L. R. 19 Ch. D. 342, 351. { • s.c.R. SUPREME COURT REPORTS . "· - . • .'1 1377 1955 :Jugalkishbre Sarqf v • . Raw Cotton co. Ltd. Das :J. transfer rule 16. the decree to be passed to be done, fastened upon It is to be noted that to attract in Raja Sahib Perhlad v. Budhoo(1), Privy Council treating that as . soon 'as a decree was passed equity, as done what ought for transfer became .. the the agreement decree and the decree and the transferee became a transfer of the meaning of Order transferee of the decree within XXI, the ap plication of this equitable principle there must be an agreement future. As soon as the decree is passed equity fastens upon it and, by treating as done what · ought to be transferor has exe that is by assuming that the done, transferee cuted a deed transferring the decree as in all conscience he should do equity regards. the transferee as the beneficial owner of the after-acquired decree. The equitable principle we are considei:ing only implements or effectuates parties. This equity take upon itself parties either by filling up lacuna or gap in their is no agreement or otherwise. to transfer agreement between the future the parties decree the equitable principle referred to above can to test not come into play at all. this equitable the propriety of to the facts of the present case we have to principle there was here any agreement bet enquire whether to be passed ween the parties the decree leads us in the to scrutinise in question and ascertain its true meaning and import. transfer then pending suit. This necessarily the task of making any new agreement for terms of the document ·does not, however, the application of In order, therefore, the agreement of therefore, If, No point has been taken before us that the docu ment of the 7th February 1949 is only an executory agreement and not a deed of transfer. argument has proceeded before us, Court below, in question · 1s a completed . deed of transfer. This relieves us of task of closely examining the. form of. the document. For our present purpose we have, consider what properties were covered by the docu to be ment. The High . Court has. held that the decree Indeed, as before therefore, only the document (1) [1869) 12 )\,{. I. A. 275; 2 B.L.R. 111. • 4 ) ·~:;:; JugDJ!cisho;:e ·sara.f v. Raw CottOn Co. £td, Das]; 1378 SUPREME COURT REPORTS [1955] the· pl~iritiff · · woiild obtain · in ·with' the··sliid' Indian business". ·One' of .must have intended to transfer it must indutlecl 'in this document. The rea pas~ed was also sonmg appears to be' this. : Clause f of the 'document comprised six several · items · of proprieties. Each of items referred to' '.'the•' said'. Iridian business". The Fourth· .item was "All' the book and other debts in cciri'n'edion' with' the' said Indian due"to the vendors business and the foll'. benefits of· all' securities for the debts". and· the'last ap.d. residuary' item· was' "All other iri con property', to w)iich the vendors · are' ·entitled nection the· book debts was the siibject:matter' . of the pending suit. The decree therefore, .be propertf or· 'right ''.in con \Yould, the! said Indian b'usiness". Therefore, as nection with transferring all · property' · in 'connection· with they were their :business ·they foture · decree als'o. Therefore, Ile· regarded as cove'red · by the dod1mem: · I am unable· to accept lirie of reasonirig. 'It cannot' be" overlooked was' ho mention. in that . docilmenf of any suit or decree: to be' passed in that suit · as · one would have if . t~e parties . really . intended expected transfer the foture decre.e · also. Ih this connection it · is signi ficant" that the·· ~esiduary item covered· "All properties to wl\.ich the' vendor{ dre' erititled"' arid not all pri> they might iri' foture become entitled. perties' to · which Reference. may :ilso be'. niade to the provisions of Transfer · of Property Act: Under' section 8 of Act tlie trarisfe:r of property' passes· to transferee then· capable all the· int:'eresr which the the · · · 1egal incidents · thereof; and if d1e property a debt ·or actionable • • clafoi, also for. ·company It• is• urged" that· a·s ·.•the thus becanie entitled, by' ·VirtUe·• of· this document read in· the "light• of section 8; to all the rights and· remedies iricluding the right··· ·to prosecute the pehdihg suit' and to• obtain' a-' decree· the•.: decree that was eventually passed>" autortiatie:i.lly add immediately upori .. .its pass ing 'mu~t be taken ·as having been •transferred ·by ·this very. dotumemi.: ·This' I 1arguthent ilppear~~ tci . me" to really amount the quesrioh. The the ·securities respondent to a beg'gihg · of transferor . is transferred · :ind · in· propert'y passing • .. ... 1955 :fogalkishore Saraf v •. Raw Cotton Co. Ltd. Das]: . " .. - S.C.R. SUPREME: COURT REPORTS 1379 to get respondent transferors. to legal incidents in existence and, transfer· of the debt passed' all the interest which the transferors were then capable of passing in the . debt and in the· thereof. There was then therefore, the transferors no decree could not then pass. any ·interest in the non-existing decree. Therefore, section 8 of the Transfer of Pro perty Act does · not assist .company Upon the assignment of the debt the respondent com pany undoubtedly became entitled· themselves substituted- under Order. XXII,, rule 10 as plaiiltiffs in the pending suit but they. did not choose to do so and· continue the. _suit and a· allowed the decree to be passed in their favour. The true . posi tion, therefore, is that at the date of the transfer of the debt the transferors the. respondent company could not transfer the decree, because. the decree did not exist. On a true construction of the document the transferors' agreed only transfer,. besides .. the five items. of spectified properties, ·"All other properties to which· the .vendors .are entitled", that is to• sav, all' properties to· which at the ·date of the docoment: they were en'titled. At the date of the document they had the right· to proceed with the · suit and to get · such relief as the . Court by its decree. might award but no. decree had yet been passed in that suit and, therefore, property to which they- -were then entitled could.· not include any decree that might in• future be passed. It is significant that there was, in the document, no pro transfer· any ·. ·future vision purporting decree. Section 8 of · the Transfer of· Property· Act does not operate to pass any future · property; .. for that section .passes all interest which the then, i.e., at the date of the transfer, pass. There was thus no agreement for .transfer and much less a trans fer of a future decree oy this. document. All that W{lS transferors by done by the the properties . mentioned in clause 1 transfer ·only together •With ·all .·legaL ·incidents and· remedies. 'The properties·. so». transferred .. included book debts. A book debt which was·· made: the. subject-matter 0f: the. pend" ing suit did not, for that reason, c:ease to. be a. book transfei:'red '. ·bur no debt and, therefore, it was also . that document was transferor to· 1955 Jugalkishor1 Saraf v. Raw CotW'fl Co. Ltd. Da,J. 1380 SUPRE.ME COURT REPORTS [1955] to be transferred transferred. the decree was not the document under consideration and decree to. be passed in respect of that book debt was In such a situation. there was no room or scope for the application of the equitable principle at all. The transfer in writing of a property which is the subject-mater· of a suit without in terms transferring the decree passed or to be passed in the suit in relation to that ·property does not entitle . the the decree as a transferee to apply for execution of transferee of the decree by an assignment in writing· within the meaning of Order XXI, or 16 See Hansrai ) and Vithal v. Mahadeva ('). Pal v. Mukhrai Kunwar( 1 transferred or In my judgment agreed to the respondent company latter cannot claim to be transferees of the decree by an assignment in writing as contemplated by Order XXI, rule 16. • The matter, however, has been argued before us at length on the footing that the decree had been trans ferred or . agreed transferred by this document into play therefore, and that as . soon as the res pondent company became the transferees of the decree by assignment in writing within the meaning of Order XXI, rule 16., As considerable legal learning has been brought to bear on the question of the application of the equitable principle and its effect on the prior written agreement and as the different decisions of the High Court are not easily reconcilable, I consider i: ;·i;·.ht to record my views on that question. the equitable principle came the decree was passed to be I shall, then, assume, for the purposes of this part of the argument, that the document of the 7th Febru transfer covering ary 1949 was a completed deed of the decree. to be passed in future in the then pending suit. Under the Transfer of Property Act there can be no transfer of property which is not in existence at the date of the transfer. Therefore, the purported transfer of the decree that might .. be· passed in future could only operate. as a contract to transfer the decree to be performed in future;, i.e., . after the. passing of the (1) [1908] I. L. R: 30 All. 28. (2) [1924] 26 Bo"1· L.R. 333. . '-Ir .. - 1 955 Juga/kishore Saraf Raw vCotton Co. Ltd. ' DasJ. S.C.R. SUPREME COURT REPORTS 1381 in equity. the operation of It is only when that property passes the equitable principle on decree. The question then arises : What is the effect decree as and when it is passed? Where there is a contract for the transfer of property which is not in intending existence at the date of the contract, transferee may, when the property comes into exist- the contract by specific performance, ence, enforce the contract is of the kind which is speci- provided fically enforceable transferor voluntarily executes a deed of transfer as in all conscience he should do or is compelled to do so by a decree for specific performance that the legal title of the transferor in him to the transferee. This transfer of title is brought about not by the prior agreement for transfer but by transfer. This process ob- the subsequent deed of viously expenses. To trouble and delay, involves obviate these difficulties equity steps in again to short circuit the process. Treating as done what . ought be done, that is to say, assuming that the intending favour transferor has executed a deed of transfer in ·of the intending transferee immediately after the pro- perty came after-acquired property and inte- transferred to the intending transferee. rest therein as transfer The question for consideration is : brought about by property to be acquired in future was transferred or agreed to be transferred ? In other words, can it be said, in such a situation, that the after-acquired pro- transferred, proprio vigore, by the perty had been earlier document? Does that document operate as an the meaning of Order assignment in writing within XXI, rule 16? Learned counsel for respondent company contends that the answer to these questions must be in the affirmative. He relies on several cases to which reference may now be made . . In Purmananddas Vallabdas Wallji (supra) In May 1859 one R died leaving his properties to executors in trust filed , a the appellant. suit in the Original Side of the Bombay High Court the earlier document whereby fastens upon the beneficial into existence, equity the facts were these. In August 1868 the execl, ltors Jivandas v. treats Is - •, •955 ;JUgal/dshore· Sara:. v. Raw Cottiln Co. Ltd. Das]i 1382 SUFREME COURTi REPORTS [1.955]: against Luckmidas· Khimji• for recovery of mtmey lent to him as manager of Mahajan Wadi. During • pendency ·of. the: suit,. the. executors on the 11th May 1870 assigned · in· very wide and general terms all the the· appellant including properties of the: testator to ·'all movable. property,. debts claims and things. in action· whatsoever vested in them as such. executors" .. The. appellant ·was not . .brought on the record bµt the suit proceeded. in the ·name of.. the executors; On · the 23rd the. plaintiffs on• for Rs. 31,272-13-5 which .:was made a. first· charge on: . the Wadi properties. · The appellant. ·applied for execution. "0£ ·the:· decree -under -.seGtion 232 of Code· of 1882 · (con-esponding .t-0 · our Order. XXl, rule. 16), as' transferee of the. decree. The Chamber Judge dismissed the application· .. Qn appeal Sargent,. C.J .. ,. and Bayley;. J., . held· that the appellant was competent. to. maintain the application. After ·pointing:- 011.t that . the assignment . was in the. most general .terms, Sargent,. C.J.,·. observed.:~: · January· 1873 a decree was · passed i.e .. the . executors; the ,, record; thernupon• ·" .... : .. . •: .- .. , .. •.:· .... and the effect of this assignment. was, in .. ·equity,,.•to vest in Purmananddas the whole interest in· . the• decree -which . was afterwards ·,obtained. But ·it has been suggested that Purmananddas .. is not a transferee · of.· the- decree .under section. 232 of Civil Procedure Code,. because· the decree has. nat. been transferred to him "by assignment in writing or by operatian of law", ··and: that, therefore, he is not en titled to apply ·for execution .. There. is no doubt that, in:· a· Court. of equity, -in .England -the decree . would be regarded-. as assigned· to' Purmanartddas, and. he would be .-allowed to· proceed in exerntion in .. the -name of the assignors. Here there is· ·no distinction between· "law" and .. .'~equity";· and by the expression .1by ... operatiou of law'. law as in these Coufts. We ·think : under , the administered circumstances .that we must hold that this ... decree has been. transferred .. to ,Furmananddas .. 'by operation- . of law''\ ... --· ·· ,,1 · Th~" -'last , ·sentence by•· ·."ihdf;' i ·'quitei ·"'dearly i:n the · abo'Ve · 'qu6tati6n;" ·.standing learned indic'aii!s • "tfo1r• 'the tnust. ·be, understood .the , operation: of •,P• ,, .,' ,,. "' q . . S.C.R. SUPREME COURT :REPORTS 1383 Chief')ustice ·was of the view that as the benefit of the decree became available to tlic:; appellant by opera tion of the equitable principle it had to be held that the decree had been transferred to the · appellant "by than by ' an assignment in operation of law" rather writing and that is how it was understood by the_ re porter who framed' the head-note. The learned ' Chief Justice, however, immediately after that last sentence added:- ·· 19,55 Jugalkishore Saraf v. Raw Cotton Co.Ltd. Das]. 'the· decree has been in . · writing as construed "In the present 'case ferred by an· ·assignment the~e · Courts". This senteace . prima f acie appears to be somewhat in consistent with immediately preceding and it 1has. given rise t<,> a good. deal of co~merits . in later , cases .. The learned. Chi.ef Justice has no.t referred to any case . in which . the Bombay . High Court had adopted ' such a constructfon. the sentence ' ' , ' ' ) \,'.ase . follows . µie· decision of Th~. case' 0£ A~~nd~ .Af.ohon Roy v. Pro~oiha . Nath Ganguli-( 1 the Bombay High Court in . Purmanan; ddas Tivandas v. Vallabdas W allji (supra). It sliould be : noted, . however, that, in.· this the decree was . obtained and . the trans Calcutt.a fer was ,tµade on the' same day and it' was held that though there was . no :J,Ssignment of the decree in so many, words the property with all ;irrears of rent hav ing . been , assigned simultaneously with the passing. of the <decree . th,e assignment p"ssed the decree also. the mortgagee ·\ The case• of Chimanlal Hargovinddas v. Ghulam In that nabi {supra)· has been strongly relied upon. case a ·shop was ·held by A· and B as •tenants-inc common. In May 1936 A agreed to sell· his half. share to C. As per arrangement A· filed a partition· suit on the 16th January · 1937 to recover his share·.- The - dis putes' in the suit were referred to arbitration· by order of ·Court and eventually the umpire ·made hiS award on· the 16th January 1939 declaring that · A· was• en titled1 to; a half share. .A then; on -·the· · 7th· March, 1939; stild'-ali· his riglits ;under the award (which1 was · f1) [ig2b] 25 c.W.'N.'a63; A.1.R. '19~1 ea1. 14~· •' ·" · '· · · ' ' 1384 SUPREME COURT REPORTS . . ' [_1955] '955 ."J?Jgo/Jcishor~ Saraf v. Raw Cotton Co. LJd. -. Das called a decree) to C by a registered deed. C did not apply for substitution of his name on the· recoid of the suit. The Court passed a decree upon the. award on the 1st September, 1939. On · the 24th November 1939 C applied ·for execution of the decree. Ii: was held that C was entitled to execute the decree under Order XXI, rule 16, for what had been transferred to him was not merely A's half share in the property but all his rights under the award including the right to .take a decree. the terms of the previous agreement and the fact that the parties were treating the award as a decree the intention was quite clear that by the subsequent deed of sale both it had been trans the award and ferred. the Full Bench that if the sale deed transferred only A's half share in the property or only his right to take a· decree C could not apply under Order XXI, rule 16. In this case, having regard It was quite clearly the decree upon recognised by .... ' Reading the three cases relied on by learned coun sel. for the respondent company it seems to me that proceeded on the footing that the equitable title related back to the earlier agreement in writing ·and converted the agreement to transfer the future decree into art assignment in writing of that decree as soon as it was passed. Some support is sought to be derived learned counsel for this doctrine of relation back from the above quoted observations of Lord· Westbury in Holroyd v. Marshall (supra) "that the contract would, in equity, transfer the beneficial interest" and of Jessel, M.R., in Collyer v. Isaacs (supra) that "the complete assign contract to ment". I . accepting this argument as sound. In the first place the Lord Chancellor and the Master of the Rolls were not con cerned with the question of in the form In the next place it in which it has arisen before us. must not be . overlooked that the equitable principle herein alluded ,to is not a rule of .. construction of docu ments but is a benefit of the after-acquired property on the person to transferor . had, by his agreement, promised w horn to transfer the same, Thus, by .treating as done that thus becomes a consider.able. difficulty rule which confers relation qack substantive assign 1955 Jugalkishore Saraf v; Raw Cotton Co. Ltd. Das]. S.C.R. SUPREME COURT REPORTS 1385 interest transfer they were transferred trouble and the agreement, by intervenes and places the property when it which ought to be done, equity fastens upon the after transfer of it. acquired · property and brings about a The implication of this principle, to my mind, clearly itself and proprio vigore, does not subsequently acquired but that instead of putting the intending transferee to the expense of going to Court for getting a decree for specific per formance directing the promisor to execute a deed of transfer which when executed will transfer the after aquired property, equity parties in a position relative to each other in which intended to be by the prior agreement placed as if a deed of transfer had been made. As I apprehend the position, it is by the operation of equity the actual acquisi on the subsequent event, namely, tion of the property on its coming into existence the beneficial therein promisee. This transfer, to my mind, is brought about by operation of equity which is something dehors the prior agreement. It is true that that agreement makes the application of the equitable principle possible or I may even say that it sets the equity in motion but, nevertheless, the after-acquired pro transferor of his perty and passes it to the intending transferee.· That being the true position, as I think it is, the after logically and on principle, acquired property cannot, be said to have been intending transferee oy the agreement in writing. I do not see transfer can be said to relate on what principle back to the previous agreement. I am fortified in my view by the observations of Lord Cave in the case of Performing Right Society v. London Theatre of Varie ties (1). In that case, in 1916 a firm of music pub lishers, being members of the plaintiff society, assigned by an performing right of every song, the right of perform ance of which they then possessed or should there after acquire, to be held by the society for the period of the assignor's membership. Subsequently, a certain it is equity alone which denudes indenture of assignment transferred to interest in society (1) L. R. [1924] A. C. 1. .1955 Jugalkishore Saref Vo Raw ·Cotton Cu •. L/d. ~ Das].

1.386 ..S-UPREME:COURT REPORTS U955J song was written; and ·fhe copyright in .it, . together with the right of performance, was assigned . by . the author to the said firm, but there was no fresJi. assign the plaintiff society the firm ment .in writing by ·such as .was required by section 5 (2) of the Copyright Act, 1911. The defendants, who were music hall. pro prietors, ·permitted this song to be publicly . sung in their music hall without •the consent of the plaintiff society. The plaintiff society the defen dants for infringement of their performing rights and claimed a .perpetual injunction. The defence was that as there was no assignment · .in writing of the copy ril\"ht subsequently acquired· by the firm to the plaintiff society legal owner and, therefore, was not entitled to a perpetual injunction. Discussing the nature of plaintiff .society under indenture of 1916 and its claim to the after-acquired copyright secured by firm and referring to section 5, sub-section (2) of •the Copyright Act, 1911, Viscount · Cave, L.C., observed at p. 13 :~ the right acquired by latter was not then sued "There was on the respective dates of the· instru ments under which the appellants claim no existing copyright in the songs in question, and therefore no owner of any such right; and this being sb, neither of those instruments can ·be held to have been an assign ment "signed hy the owner of the right within meaning of the section. No doubt when a person executes a document .purporting to assign property to be afterwards acquired •by .him, that property on acquisition passes in equity the assignee : Holroyd v. Marshall, 10 H.L.C. 191; Tailby v. Official Receiver, 13 A:C. 523; but how such a subsequent acquisition can be held to relate back, so as to cause an instru ment which on its date was not an assignment under the Act to become. such an assignment, I am unable to understand. The appellants have a right in equity to have the .performing rights assigned to them and rights; in that sense are equitable owners .. of but they are not assignees of meaning of the . statute. This contention, .-therefore, fails". the rights within 1955 Jug4lk#hore $araf v. ,Raw. Cotton Co. Ltd. Das]. S.C.R. SUPREME COURT REPORTS 1387 The above observations, to my mind, completely -cover the .present case. On a parity of reasoning, the respondent company may have, by operation of equity, become entitled to the benefit of the decree as soon as it was passed but to · say that is not to say that there has been a transfer of the decree by the document of the 7th February 1949. And so it has been held in several cases to which reference may now be made. In Basroovittil Bhandari v. Ramchandra Kamthi( 1 ) the decree to be passed in the 'the plaintiff assigned pending suit. The assignee was not brought on record under section 372 of the 1882 Code correspond ing to Order XXII, rule 10 of the present Code but the suit proceeded in the name of the original plaintiff .and a decree was passed in ·his favour. The assignee , icn applied for execution of diat decree claiming to ·be a transferee decree-holder under section 232 of the 1882 Code. That application was .dismissed. White, 'C.J., observed:- "We are asked to hold that in the event which happened in this case die appellant is entitled to be -rreated as the transferee of a decree from a decree Jiolder for the purpose~ of section 332, notwithstand .ing that at the time of the assignment there was nv .decree and no decreeoholder. It seems to us that we should not be warranted in applying the doctrine of equity on which die appellant relies, which is stated in Palaniappa v. Lakshmanan, I.LR. 16 Mad. 429, for the pµrpose of construing section 232 of the Code. We "decree-holder" must be con- :strued as meaning decree-holder in fact and not as including a party who in equity may afterwards be ·come entitled to the rights of the actual decree-holder, .and that the words of the section relating to a transfer of a decree cannot be construed so as to apply to a case where there was no decree in existence at the .time of the agreement". lt is true that Vallabdas Wallji (supra) was not cited in but die the case of Purmananddas Jivandas v. that case ) which case of Palaniappa v. Lakshmanan( 2 think the words (1) [1907] 17 M.L.J. 39i. (2) [1893) I.L. R.t6 Mad. 429. ~ - • ,. 1955 ]ugalkishort Saraf v. Raw Cotton Co. Ltd. Das]. 1388 SUPREME COURT REPORTS .[1955] adopted the equitable principle enunciated by Jessel, M.R., in Collyer v: Isaacs (supra) on which that Bom bay case had· been founded was brought to the notice of the Court. to bring himself on In Dost Muhammad v. Altaf Husain Khan(') one M instituted a suit for recovery of some immovable pro perty. During the pend ency of the suit M transferred his interest in the property to the respondent. The · respondent did not apply record and the suit went on in the name of M· as the plaintiff. By a compromise decree M was awarded a portion of the property. After the decree was passed the respondent applied to execute the decree_ as tr:µ15feree of the decree. The Munsiff rejected application but the District Judge reversed his order. On second appeal Chamier, J., found it impossible the decree, tr.eat the respondent as the transferee of for the document on which he relied was executed be fore the decree was passed. ., )11 + . .. .,, -• Peer Mahomed Rowthen v. Raruthan Ambalam(2) the Madras may also be referred High Court followed its earlier decision in Basroovittil Bhandari v. Ramchandra Kamthi (supra). In that case to. The case of Thakuri Cope v. Mokhtar Ahmad(') does for it only follows• · not carry the matter any further, the three earlier cases hereinbefore mentioned. suits Hennessey rent suits against instituted the Zamindari Mathurapore Zamindary Co. Ltd. v. Bhasaram Man da!(' ) represents the view taken by the Calcutta High In that case Hennessey and his brothers, who Court. were Zamindars, and his Pending tenants. brothers transferred the appellant company. The appellant company did not get selves substituted as plaintiff but allowed the suits to proceed in the names of the original plaintiffs who were the transferors. Eventually, decrees were passed in favour of Hennessey and his brothers. The appel lant company then applied for execution. The exe cuting Court and the lower appellate Court held that (1) [1912] 17 l.C. 512. (2) [19151 30.r. a. 831. (3) 1922 C.W.N. (Patna) 256; A. I. R. 1922 Pat. 563. (4) [1924] I.L.R. 51 Cal. 703. 1955 Jugalkishore Saraf v. Raw Cotton· Co. Ltd. Das]. , S.C.K SUPREME COURT REPORTS 1389 transferee of the .the appellant company was not a thereupon preferred decree. The appellant company It was held to the High Court; this second appeal the appellant company could not apply under Order XXI, rule 16, that rule could not properly cover a case where there was no decree at the date· of the assignment of the property and the term "decree hoJder" could not cover a party who, in equity, might the rights of the afterwards have become entitled actual decree holder. The case of Ananda Mohan Roy v. Promotha Nath Ganguli (supra) was explained as being based really on the construction that was put upon the convey.ance, namely, that it covered a· decree which had been passed "simultaneously with, if not the conveyance". After execution before, pointing out Purmananddas f ivandas V·. the transferor and transferee V allabdas W allji (supra) in the position of trustee and cestui que·trust and that that .circumstance might hav.e attracted the ap plication of the Court could not assent tc'· the broad proposition supposed to have that case equity became a transferee of the decree by the prior to come under Order XXI, rule 16 agreement so as the decision of the Madra~ and preferred in · Basroovittil Bhandari v. Ramchandra High Court Kamthi (supra) and the other decisions to which erence has been already made. the equitable principle the transferee laid down follow Pandu the appellant In Pandu foti Kadam v. Savla Piraji Kate(1) one Tuljaram obtained a decree on a mortgage against appellant Pandu Joti. Later on, the respondent Savla brought a suit against Tuljaram. In that suit a decree was passed directing to Savla. the mortgage decree transfer Tuljaram The thereupon without having ob respondent Savla tained, amicably or by execution of his decree, an actual assignment of the mortgage decree sought execute that although Savla had a compel his judgment-debtor Tuljaram him the mortgage decree obtained by Tuljaram, such that decree, legal right, by executing his own decree, to assign It was held .. (1) [1925] 27 Born. L. R. uo9. 14-90 S. C. India/59 1955 Jugalkishore Saraf v. Raw Cotton Co. Ltd. DasJ. 1390 SUPREME COURT REPORTS [1955} right alone, without an assignment in writing, did not make him a transferee of the mortgaged decree so as to be entitled to execute that decree. the decree in February 1914 for execution of In November 1914 a decree was passed in connection with a plea of the Bombay High Court (Fawcett and Mad Even gavkar, JJ.) in Genaram Kapurchand Marwadi v. Hanmantram Surajmal (' ) followed the decision of Madras High Court in Basroovittil Bhandari v. Ram chandra Kamthi (supra). The question came up consideration limitation. There appellant obtained an assignment of the rights of the plaintiff in a pending suit which was thereafter continued by the original plaintiff. favour of the original plaintiff. The appellant made several applications 1916, 1917, 1920 and 1921 all of which were dismissed. In November 1923 the appellant obtained in writing from the plaintiff and made a assignment fresh application judgment-debtor pleaded that the earlier applications were not in ac cordance with law and did not keep the decree alive. It was held that although the appellant was entitled, to the benefit of the decree he did not, be in equity, fore he actually obtained an assignment of the decree in 1923, become a transferee of the decree by an as in writing within Order XX!, rule 16 and, signment the applications made by him prior to 1923 therefore, were not made in accordance with law and, therefore, the last application was barred by limitation. This that Order decision clearly proceeded on the ground XX!, transfer of a decree after it had been passed. rule 16 contemplated only for execution. The a the view respondent company, assist the Court the deed transferred The case of Abdul Kader v. Daw Yin(•) does not true construction, that case actually that had already been passed. In Prabashinee Debi v. Rasiklal Banerji('), Rankin, under consideration the decree C. J., considered the previous cases and preferred for in that case that, on its (x) A..!.R. 1926 Born. 406; 28 Born. L.R. 776. (2) A.I.R.1920 Rang. 308. ;~) [1931) .l.L.R .. 19 Cal. 297. t .. 1955 Jugalkishore Stlt'af v. Raw Cotton Co. Ltd. DasJ. S.C.R. SUPREME COURT REPORTS 1391 follow the case of Mathurapore Zamindary Co. Ltd. v. Bhasaram Manda! (supra). to be suit against The case of Purna Chandra Bhowmik v. Barna Kumari Debi(1) does not, when properly understood, afford any support to the contention of the respon dent company. There the defendant No. 1 had exe• cuted a mortgage bond in favour of the plaintiff as signing by way of security the decree that would be passed in a pending suit which he, the defendant No. 1, had instituted against a third party for recovery of money due on unpaid bills for work done. After this mortgage a decree was · passed in that suit in favour that suit of the defendant No. 1 who had continued the plaintiff. The plaintiff daiming assignee by way of mortgage of that decree instituted two defendants. The defendant the plaintiff in the earlier suit who had No. 1 was mortgaged to the plaintiff the decree to be passed in that suit and the defendant No. 2 was a person who claimed to be a transferee of the same decree under a conveyance subsequently executed in his favour by first defendant. The judgment-debtor under the decree in the first suit was not made a party defen dant in this suit. The first c::lefendant did not con test this suit and it was only contested by the second defendant. One of the points raised by the contest ing 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 in the plaintiff did not pray for consequential relief shape of a permanent injunction restraining him, In contesting defendant, from executing the decree. as manifestly untenable repelling Mukherjea, J., as he then was, said :- argument "All that the plaintiff could want possibly at the present stage was a declaration that she was an as signee of the decree and if she gets a declaration would be open to her to apply for execution of the decree under Order XXI, rule 16, of the Code of Civil Procedure. No other consequential relief by way of (1) I.L.R. [1939] 2 Cal. 341. ; • .., - 1955· 7¥galkishore·_ Sa~af. v. Raw Colton~ Co. Ltd. Da ]. '" ~, 1392 SUPREME COURT REiPORT,S [1955] judgment-debtor. the decree and the miunction or otherwise could or. should have been prayed for by the plaintiff in, . tpe present · suit". It will be noticed that· the •construction of Order XXI, rule 16; was not in issue at all. The question was. not between the person claiming to be the transferee judgmentcdebtor was not a party to this suit at all. The simple question was whether the suit was main tainable under section. 42 by reason. of the absence of. a prayer facts of that case · · the observation . quoted above ap pears to· me to be· a passing• one not necessary for the decision of the· question the Court and not an expression of considered opinion on· the mean ing, scope and effect· of Order XXI, rule 16. for consequential In view of then before Indeed, relief. lay down-and I Al!. the cases, except the three cases relied on by the respondent company, quite learned counsel think correctly-that Order clearly XXI, rule 16, by the. first alternative, contemplates the actual transfer of the decree by. an assignment in writing executed after the decree 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 terest in the decree after it. is passed, such equitable transfer .does not relate back to the priqr . agreement and does not_ render the transferee a transferee of the the mean decree by an assignment in writing within ing of Order XXI, rule 16. is passed and the beneficial Learned counsel for the respondent company contends that even respondent company did not, by force of the prior agreement in writing read in . the light of the equitable principle alluded to above or of the provisions of the Transfer of Property Act, become the· transferees of the decree by an assignment the·· transferees in writing, of the· decree "by operation of' law" within the mean ing of Order XXI, rule 16. That phrase has been con sidered by in numerous cases but the interpretations put upon It are. not· at all uniform and it is difficult to reconcile all of them. the different High Courts they, nevertheless, became - "1955 Jugalkishore Samf v. Raw Cotton Co. Ltd. Das J S;C.R. 'SUPREME GOURT ,REPORTS 1393 judgment in In this the present case the executing Court exprnssed the view that the ·.phrase could ·only mean that •the Tights had been transferred "on account of devolution of interest on death, etc" .. In deliver ·Patent Appeal, Chagla, C.J.., said :~ the Letters judgment "The operation of law contemplated by Order XXI, rule 16 is not any equitable principle but opera tion by devolution as in the case of death or insol- " vency .. The learned . Chief Justice does not ·give any mason for the view expressed by him but assumes the law to is . probably be so. The genesis for such assumption to the observations of Sir Robert P. Collier traceable judgment of the Privy Council in who delivered the Abedoonissa Khatoon v. Ameeroonissa Khatoon(1). The question arose in that case in this way. One Wahed sued his father Abdool for possession of ·certain pro perties. The trial Court dismissed the suit and Wahed appealed the High Court. During the pendency of the appeal Wahed died and his widow Abedoonissa was substituted in the place of W ahed for prosecut ing the appeal. The High Court allowed the appeal and by that W ahed was in his lifetime and those who became his heirs were entitled to recover the properties in suit. Abedoonissa applied for execution of the decree for herself and for one W ajed who was said to be the posthumous son of Wahed born of her womb. Objection was taken, inter alia, that Wajed was not the legitimate son of Wahed. This . objection was overruled and Abedoonissa was entitled ·to execute herself and as the guardian of Wajed. Then the judg .Abdool died. Abdool's widow .. Ameer ment-debtor oonissa filed a suit for a declaration that Wajed was not the· legitimate son of Wahed and for: setting aside the last mentioned ·order. Abedoonissa took the point .that the matter was concluded by principles • of res judicata. To that Ameeroonissa's reply was that . the proceeding in which the the question of the legitimacv of incompetent .so far as Wajed was decided was wholly it was held the decree its decree declared (1) [1876] L. R. 4 I. A. 66, l.L.R. 2 Cal. 327. ' · 1 •955 JugalkishOf'e Saraf v. Raw Cotton Co. Ltd. Das]. 1394 SUPREME COURT REPORTS [1955] Wajed was concerned because, the decree being in favour of Abedoonissa, Wajed was not a transferee of the decree within the meaning of section 208 of Act VIII of 1859 corresponding to Order XXI, . rule 16 of the present Code and could not apply for execution and that being so any adjudication on his status such proceeding was not binding at all. The ques in the suit was whether Wajed was tion for decision a transferee of the decree within the meaning of section 208 of the Code of 1859. It was in that con nection . that Sir Robert P. Collier judgment of the Privy Council, after quoting section, observed :- · in delivering "It to transfer any estate appears to their Lordships, to have the in the first place, interest asserted, that, assuming Wajed the decree was not, in terms of this section, transferred to him, either by assignment, which is not pretended, or by operation of law, from the original decree-holder. No incident had occurred, on which the law could operate, from his mother to him. There had been no death ; there had been no devolution ; there had been no succession. His mother retained what right she had ; that right was not trans ferred to him ; if he had a right, it was derived from therefore, their Lordships, his father ; it appears that he is not a transferee of a decree within the terms of this section". The above observations to put upon the phrase ·seem "by operation of law" an interpretation which, in the J., in his judgment in Sail language of Chakravartti, endra Kumar v. Bank of Calcutta(! ) "suggests in cases where certain events, not would apply only connected with any act on the part of anybody wards' making a transfer, happen and the law, operat ing on those events, brings ·about· a transfer". Some of the decisions of certain High Courts to be presentlv Privy Council . were out to give an exhaustive enume ration of the cases of transfer of property by opera in agreement with tion of law but I find myself Chakravartti, · L for making that there is no reason their Lordships of to assume (•) I. L. R. [1948] I Cal. 472. - ,, f S.C.R. SUPREME COURT REPORTS 1395 such an assumption as the text of a statute. and treating these observations 1955 }ugalkis/,ore Saraf v. Raw Cotton Co. Ltd. Das]. In Dinendranath Sannyal v. Ramcoomar Ghose( 1 ) Sir Barnes Peacock pointed out the great distinction bet ween a private sale in satisfaction of a decree and a in execution of a decree. One of the principal distinctions so pointed out was :- to be interest "Under the attachment and former the purchaser derives through the vendor, and cannot acquire a better title latter the pur than that of the vendor. Under the chaser notwithstanding he acquires merely the right, judgment-debtor,, acquires of the title and that title by operation of law adversely to the ment-debtor. and freed from all alienations or incum brances effected by him subsequently the attach ment of the property sold in execution". Here the act of the decree-holder in seeking execution by attachment and sale and the act of the Court in possibly be sale cannot directing the happening of an event unconnected with the act of making a transfer such as death or to· in Abedoonissa' s devolution or succession case (supra) could be said the act of ap plying for execution the decree-holder quite dearly stripped desires that the of all his the property attached and sold and the order of the Court has the judgment-debtor and of effect of so denuding the interest to the purchaser title and right. passing his the Court sale. This transfer of of the property at is not by any assignment in writing exe property cuted by the transferee the operation of the statu but is brought about by relating to and governing execution tory provisions of decrees. Thus itself that transfers "by operation of law" were not to the three cases of intended bv death, dev~lution or succession .. judgment-debtor title and this Privy Council decision transferor in favour of the should be it to be confined to be. By referred interest right, More often than not transfers "by operation of law" will be found to be brought obout by the opera- ( x) [1889] L. R. 8 I.A. 65,75. ... . 1955 · Ju'galkishore .faref v· Raw Co!ton ·C1. Ltd. '/Jas J. .1396 SUPREME COURT REPORTS [1955] .a law. :person in · the in -relation the official auction-purchaser is brought about by insolvency laws which have try and enumerate exhaustively .this country. When a person transfer 'by operation of law. Suffice '.fhus when is a devolution ,of :his ;Properties operation .dies ·tion .of cstatutor.y testate to his legal representatives by . testamentary succession which is now. mainly statu Is adju_dged .tory .in assignee ·insolvent his properties vest transfer the operation codified. Court ·s~le of property in execution of a decree vests the right; title and interest cif the judgment-debtor In that property ·thereby effecting a trarisfer ·by operation of the hw embodied in the Code of Civil Procedure. Likewise, statutes m the forfeiture of property, e.g. some cases provide for to which an offence has been property committed, namely, ·illicit liquor or opium, etc., and thereby effect a transfer of such property from ·the delinquent owner to the State. It is neither necessary nor ·profitable 'instances of to say that there in no warrant for confining transfers '"by operation of law" to by operation of statutory laws. When a Hindu or a Mohammaden dies intestate and 'his heirs succeed to his estate there is a transfer not by anv statute but by the operation to consti :tute a transfer of property "by operation· of law" all that there must be a passing of one person's rights in ·property · to · another person by ·the force df some law, statutory or otherwise. Reference has already been made to the case of /ivandas v. Vallabdas Wallji (supra) Purmananddas equitable principle, Sargent, where, by applying the right to maintain C.J., upheld the application 'for the beginning 'learned 'Chief Justice · founded his decision on ground that the appellant had become the transferee 'This view ap ·of pears to me to be logical, for 'it was ·by the operation of the · ·equitable principle that the · ·right~ -interest 1of the . transferor in the after-acquired decree became the property of the appellant. ,Jn .other iwords, the decree "'by operation of law". their respective personal appellant's · execution. is necessary In order transfers law. In 'is tg,55 ]ilgalkishore Saraf v • . Raw Cotton .co.lid. .fJasJ. - S.C.R. SUPREME COURT REPORTS 1397 it was equity which operated on the decree as soon as it was passed and passed the interest -0f the decree holder to the appellant. The result of this transmis the decree sion was to transfer the property holder to the appellant and this transfer was brought about by the operation of the equitable principle dis .c;ussed above which is as good as any rule of law. The in Purmananddas Jivandas v. VaUab actual decision das Wallji (supra) may well be supported as ari in stance of transfer by operation of indeed Sargent, C.J., himself first described that case as being one by operation of law. The same remarks apply two cases of Ananda Mahon Roy v. Promotha Nath Ganguli (supra) and Chimanlal Hargovinddas v. Ghulamnabi (supra) relied ·On by learned counsel for the respondent company. law and the other transfer 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 In the properties and mesne profits. August 1928, i.e., after the passing of the decree plaintiff executed a deed for the sale of the properties to the appellant who by the terms of the deed was the properties through Court to . obtain possession of therein. The on· payment of the amount mentioned plaintiff deposited the necessary amount and applied for execution of the decree but she died shortly there :after. Thereupon the appellant applied for execution of the decree. On a construction of the terms of the sale deed the Court came to the conclusion sale deed covered appellant was. a transferee of the decree by assign ment i.n writing. This was sufficient to dispose of the case but the learned Judges tried to reconcile some of the earlier cases by deducing two propositio.11.s : therefore, the decree and, (1) that the words "by operation of law" cannot be invoked so as to make an assignment operative transfer it which would upon the true construction of its terms; other wise, be inoperative in that regard; and the decree and · the right under (2) that although in certain cases principles . of equi1y may be relied on, e.g., in the case of .a transfer 1955 Jugalkishore Saraf v. Raw Cotton Co. Ltd. Das]. 1398 SUPREME COURT REPORTS [1955] trustees and ·a beneficiary, such principles cannot "by transfer valid rendering a be considered as operation of law". fastens that equity and operates upon It is difficult to appreciate the implication of the first proposition. When on a true construction of the deed it actually operates to transfer a decree then in exist ence, no equitable principle need be invoked, for m that case the transfer is by the deed itself and as such is by an assignment in writing. It is only when deed does not effectively transfer the decree because, instance, the decree 1s not then in existence, but the decree constitutes only an agreement to transfer after it is passed that the invocation of the equitable principle becomes necessary and it is in those circum stances decree when it is passed and effects a transfer of it If, however, the learned Judges meant to say that if on a· true construction of the deed it did not cover· the decree then the equitable principle would not come into play at all and in that case the principle of trans fer by operation of invoked, no· exception need then be taken. As regards the second proposition which appears to be founded on the ob servations of Mukherji, J., in Mathurapore Zamindary the equitable· Co.'s case (supra) principle may be relied on only in the case of a trans fer by· trustees to cestui que it was applied in the two earlier English cases as between mortgagor and mortgagee and m Performing Right· Society v. London Theatre of Varieties (supra) to an indenture of assignment of copyright to be acquired' in future made between persons who did not stand m the relationship of trustee and beneficiary. Nor do I see why, the equitable principle applies, the transfer should not be regarded as one by opera tion of law. I do not see why law could not be in cases where Indeed, trust. In Mahadeo Baburao Halbe v. Anandrao Shankarrao transfers by ope Deshmukh(') .the judgment confined ration of law to cases of death, devolution · or succes sion. for which, as already stated, I see no warrant. (1) [1933] I. L. R. 57 Bom. 513. - S.C.R. SUPREME COURT REPORTS 1399 The decision in Periakatha Nadar v. Mahalingam() 1s somewhat obscure. There a receiver appointed in a partnership action filed a suit against a debtor of the firm and obtained a decree. Thereafter the assets of the firm mcluding the decree were directed to be sold by auction amongst the partners. This order was made in spite of the objection of the partners. The decree was purchased by one of the partners who was defendant No. 2. The purchaser then applied for execution of the decree. Pandrang Rao, J. said, at p. 544 :- 1955 Jugalkishore Sara v. Raw Cotton Co. Ltd. Das]. the words in execution "It appears to us the purchaser of a property the owner of a decree by some 'operation of to a case where a person ha~ law' cannot apply transaction become It applies to cases where the decree has inter vivas. been transferred from one to another by way of suc cession or where there is a bankruptcy or any similar event which has the effect in law of bringing about such a transfer". If becomes the transferee of the property by operation of law I, for one, cannot see why the purchaser of a property at an auction sale held in a partnership in invitum action under the order of the Court made will not be a transferee by operation of law. If an involuntary execution sale vivas why should an auction sale held in a partnership the parties be a action in the teeth of opposition of transaction inter vivas? The learned Judges concluded that as no particular form of assignment was pres cribed for transfer, the order of the Court might be treated as an assignment in writing of the decree. I find it much easier to hold that there was in that case a transfer by operation of law than that the Court acted as the agent of the partners and the order of the Court was the assignment in writing. The law authorised the Court in a partnership action to order the sale of the partnership assets and consequently the interest of all the partners other the sale passed than the purchasing partner in the decree solely· is not a transaction - • 1 (1: A.I.R. 1936 Mad. 543. SUPREME COURT REPORTS [1955] 1955 :fugalkishom'Sari!f. .v •. Raw Cottan .c •. Lt~. Das(]. •l do not ·see why .a transfer .·thus brought the latte>. .about -Should not, ·like a transfer ·effected by a ·Court ·sale in ·execution, ·be regarded .as a transfer by ·opera there is tion of . <law. ·no valid ·reason for confining •transfer by operation of -law to succession and bankruptcy or the ·like. ·Further, as I have already said, In G. N. Asundi v. Virappa Andaneppa Manvi('.) a ,father sHed his sons for a declaration of his sole tide ·to a clecree previously .obtained by the ·sons against a ·third party on •promissory notes. The parties came to a cgmpromise and a joint petition signed by the father and the sons was filed in Court in which it was Stated that the sons, had no objection to surrender -all rights in the decree to the father. The Court passed a •decree in accordance with the compromise. On an application for execution by the father of the decree ·on -the promissory notes it was held that on its ·true ·construction the .compromise ·petition amounted. to an assignment of the decree within the meaning -of Order XXI, rule 16. So far there -can be no difficulty; but .the learned Judges went. on -to .say, without, I ·think • . any good reason, that transfer by operation of intended to be confined to testamentary was obviously .and insolvency and .succession, intestate the like. This was only because •the Court felt bound to hold that the decision in Abedoonissa's case had so .It ·was als0 pointed out-I .think correctly limited it. the decree -th-at ·a decree declaring title .of ·holder to another decree previously · passed in .another suit did not effect a transfer of the earlier .decree by operation of. law and the decree-holder under the latter decree did not become the transferee of the ·earlier <lecree by ·operation .of the meaning of Order X~I, rule 16. This was aiso held in a number 'Baburao Halbe's case -,)f (.<upra) · and .Finn Kusha!das 'Leklzraj v. Firm -Jhaman das Maherchandani{' ). This must very nature of a declaratory _decree. . A · declaratory .new . right but detree. does not ·create .or confer any ·when a <leclares .including Mahadeo -t<ight. Therefore, a pre-existing law within forfeiture, follow .c:ises ' - _ _, - (!) I.L. R. [19391 Born. 271, (•) A.l.R, 1944 Sind 230· T S.C.R. SUPREME 80URT REPORTS 1:401 the decree declaratory decree declares the right of holder to another decree passed in an earlier suit; there is no divesting of interest of one person and vesting of it in another. There is no transfer at all and, therefore, the person in whose favour the decla ratory decree ·is passed· does not fall within Order XXI, rule 16, Code of Civil Procedure. 1955 Jugalkishore Saraf v. Raw Cotton Co. lid. Das]. 13 ( 4) another Darpatnidar. The last case to which reference need be made is ). There a that of Maya Debi v. Rajlakshmi Debi( 1 Darpatnidar deposited under section Bengal Patni Taluqa Regulation (VIII of 1819) arrears of revenue to avoid a putni sale and entered into possession of the putni as he was entitled to do under the above section. He then filed a suit and obtained a decree for arrears of rent due to the Patni in favour of the Patnidar by relinquished possession giving a notice to the Patnidar. The question was whether the Patnidar, after he got back the possession of the putni, could be regarded as the· assignee of the decree which had been obtained by the Darpatnidar against another Darpatnidar. It was held that in view the Patnidar on the putni became the trans getting back possession of feree of the decree by operation of law. It was also held that the notice given by the Darpatnidar to the Patnidar could also be construed as an assignment in writing. the provisions of section 13( 4) Subsequently passe.~ interest to another in property The result of the authorities appears to me to be that if by reason of any provision of law, statutory or otherwise; from one person there is a transfer of the property by operation of law. There is no reason that I can law should be re see why transfers by operation of garded as confined to by If, therefore; the Privy. Council in Abedoonissa's case. I were· able the 7th to construe February 1949 to be a transfer or an agreement transfer the decree to be passed I would have had· no difficulty in holding that by ope- the decree ration of equity the beneficial the three cases referred the document of interest · in future (1) A.I.R. 1950 Cal. 1. >- ,. 1955 Jugalkishore Saraf v. Raw Cotton Cod, td. Das). the ' ' , 1402 SUPREME COURT REPORTS [1955] respondent taken out of immediately after its passing company transferors and passed and that the latter had become the transferees of decree now sought to be executed by operation of law. As, however, I have held that that document did not the applica- cover the decree, there was no room for respondent tion of company - cannot, to come under therefore, claim Order XXI, rule 16 as transferees by operation of law and cannot maintain the application for execution. the equitable principle and the application There is another ground on which the right of the respondent company to maintain execution has been sustained. This point was not apparently taken before the High Court and we have not had the advantage and benefit of the opinion of the learned Judges of that Court. Section 146 of the Code of Civil Procedure on which this new point is founded provides as follows : to be sought "146. Proceedings by or against representatives. 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 proceeding may be taken or the ap plication may be made by or against any person claiming under him". There are two questions to be considered before section may be applied, namely, (1) whether the Code otherwise provides and (2) whether respondent company can be said to be persons claiming under the decree-holder. As regards (1) it is said that Order XX!, rule 16 specifically provides for application for execu- tion by a transferee of decree and, therefore, a trans- feree of decree cannot apply under section 146 and must bring himself within Order XX!, rule 16. This is really begging respondent the question. Either company are transferees of the decree by an assign- ment in writing or by operation of law, in which case they fall within Order XX!, rule 16, or they are not such transferees, in which event they may avail them- the provisions of section 146 if the other selves of condition is fulfilled. There is nothing in Order XX!, rule 16 which, expressly or by necessary implication ~' • --1 1955 Jugalkishore Saraf v. Raw Cotton Co. Ltd. Das]. S.C.R. illustration, SUPREME COURT REPORTS 1403 -.f' precludes a person, who claims to be entitled to the benefit of a decree under the decree-holder but does not answer the description of being the transferee of that decree by assignment in writing or by operation of law, from making an application which the person from whom he claims could have made. It is said: what, then, is meant by the words "save as otherwise this Code" ? The answer provided by that those words are not meaningless but have effect in some the second cases. Take, by way of an proviso to Order XXI, rule 16 which provides where a decree for payment of money against two or more persons has been transferred to one of them it the others. This is a shall not be executed against provision which forbids one of the judgment-debtors to whom alone the decree for payment of money has been transferred from making an application for exe cution and, therefore, he cannot apply under section 146 as a person claiming under the decree-holder. As the respondent company do not fall within Order XXI, rule 16 because the document did not cover the decree to be passed in future in the then pending suit that rule cannot be a bar to the respondent company making an application for execution under section 146 if they satisfy the other requirement of that sec they can be said to be claiming tion, namely, under the decree-holder. ... ... In that situation the person so . becoming to the A person may conceivably become entitled benefits of a decree without being a transferee of decree by assignment in writing or by operation of law. owner of the decree may well be regarded as a person claiming under the decree-holder and so it has been ), although in the earlier case of Dost Muhammad v. Altaf Husain (supra) it was held otherwise. The case of KanKati Mahanandi Reddi v. Panikalapati Venka tappa( 2 ) also held that the provisions of Order XXI, rule 16 did not prevent execution of the decree under In that case it was held that the appli- section 146. in Sitaramaswami v. Lakshmi Narasimha( 1 (1) [1918] J.L.R. 41 Mad. 510. (2) A.LR. 1942 Mad. 21. 1404 SUPREME COURT REPORTS [1955]1 1955• Jugalkishore Saraf v. RlWJ Cotton Co. Ltd: Das]. cant could not execute the decree under Order XXI, rule 16 but he could execute the same under section to whether 146. The main thing to ascertain is as the respondent company had any right, title or terest in the decree and whether they can be said. to be persons. claiming under the decree-holder. transfer then pending transfer, under I. have already held that the document under con the· future decree and; sideration did not therefore, the equitable principle did not apply and, therefore, the respondent company did not become a transferee of the decree within the meaning of Order XXI, rule 16. What, then, was the legal position of the respondent company? They had undoubtedly, by the document of the 7th February 1949, obtained a transfer of the debt which was the subject matter of suit. This. Transfer of Property Act; carried all legal inci dents and the remedies in relation to that debt. The interest transferors no longer had any right, title or in the subject matter of the suit. After the transfer the right it was the respondent company which had to continue the suit and obtain a decree if the debt was really outstanding. They, however, did not bring themselves on the record as the plaintiffs in the place and· stead of the transferors but allowed the latter to proceed with therefore, suit. The proceeded with the suit although they had no longer any interest in the debt which- was the subject matter of the suit and which had been transferred by to the respondent Company. In the premises, in the eye of the law, the position of the transferors, vis-a-vis respondent company, was nothing more that of benamidars for the respondent company and the recovery of that when the. decree was-· passed for debt it was. the respondent company who were the real owners of the decree. As between the respondent company and· the former may well transferors there ·is no claim a. declaration of their transferors question of transfer. of the decree by decree in writing or by operation of law and. the res pondent company cannot apply for execution of the respondent company by assignment· of title; Here transferors, the· ... ... .- 1955 Jugalkishore Saraf v. Raw Cotton Co. Ud. Das]. .. ,i. S.C.R. SUPREME COURT REPORTS 1405 transfer, company were, real owners of transferors and claimed the debt which undoubtedly the legal incidents decree under Order XXI, rule 16. But the respondent company are, nontheless, the real owners of the decree because it is passed in relation to and for the recovery they acquired by transfer by the document under consideration. The respondent owners of the debt which was the subject matter of thereof and conse the suit and quently were the decree. The respondent company derived their title to the debt by transfer from the same under the latter. When the respondent company be came the owner of the decree immediately on its pass the decree, be also ing they must, in regarded as persons claiming under transferors. The respondent company would not have become the the owners of owner of the decree unless they were the debt and if they claimed the debt under the trans they must also claim the relative decree under ferors transferees of the debt. . In my opi original right as nion, the respondent company are entitled under sec tion 146 to make the application for execution which the original detree-holders could do. transferors as accretions, as it were, relation reason for taking this view. In Mathurapore Zamindary Co. Ltd. v. Bhasaram Manda! (supra) Mukherji, J., felt unable to assent to the broad proposition that Courts of execution have there has to look to equity in considering whether been an assignment by operation of law. I see no If the execut cogent ing Court can and, after the amendment of Order XXI, rule 16 by the deletion of the words "if that Court thinks fit'', must deal with complicated ques tions relating to transfer of decree by operation of statutory provisions which may be quite abstruse, I do not see why the executing Court may not apply the simple equitable principle which its mind op, erates transfer to questions arising under after-acquired decree or section 146. Section 47 of the Code of Civil Pro the executing Court alone cedure does require that must determine all questions arising between the beneficial interest 15-90 S.C. India/59 1955 Jugalkishore Sara} v. Raw Cotton Co .. Ltd. Das]. 1406 SUPREME COURT REPORTS [1955] the assignees parties or representatives · and relating execution, discharge or · satisfaction of decree , the and·. authorises it even the proceedings as a suit. As debt which was the entire subject matter of the suit the respondent company were . entitled to be brought on the record under Order XXII, rule 10 and must; therefore, be also regarded as a representative of. the plaintiff within the meaning of section 47 of the Code; the plaintiff of the decision Learned Counsel for for execution was defective required. The application was the appellant contends the application although it purported to be an application for exe'cu tion under Order XXI, rule 11, it did not comply with the requirements of that rule in that it did not ·specify the· several modes in which the ·assistance of any of the Court was doubtedly defective · as the case of Radha Nath Das v. Produmna Kumar Sarkar(' ) 'and v. Moolchand Keshavchand Krishna Govind Pati ) will show but this objection was not taken Gujar( 2 before the executing Court which could then have re turned the application, nor was any objection by the appellant at any later stage of the proceedings. company Further, actually presented another tabular statement for. exe in which the assistance of cution specifying the mode the Court was required. not open· to the appellant to contend the appli cation is not maintainable. therefore, is that this appeal must be In these circumstances, that the respondent appears The result, dismissed with costs. BHAGWATI J.-I agree that the appeal be dismissed to record my own I would however' like with costs. reasons for doing so; Habib & Sons, a partnership firm which carried on business as merchants and Pukka Adatias in bullion and cotton iii Bombay filed a .suit against the Ap'pel in the City Civil Court, Bombay being Summary (1) I. L. R. (1939) 2 Cal. 325· (2) A. I. R. 1941 Born. 302. - 1955 -Jugalkishore Saraf 1(. Raw Cotton ·ca. Ltd. Bhagwati], S.C.R. SUPREME COURT REPORTS 1407 transfer transferred the Respondents undertook to recover a sum of Rs. 7,113-7-0 Suit No. 233 of 1948, interest and costs. During the penden:cy of suit an · agreement was arrived at between Habib & Sons and the Respondents on the 7th February, i949 the Res under which Habib & Sons inter alia .... ''Fourthy :-All the book and pondents other debts due to. the Vendors in connection with the said Indian business and the full benefit of all the debts .. , ......... Sixthly :-All other securities for property to which the Vendors are entitled in connec tion with the said Indian business". As consideration for the said pay satisfy, discharge and fulfil all the debts, liabili ties contracts and engagements of the vendors in rela tion to the said Indian business and to indemnify them against all proceedings, claims and demands in res pect thereof. The Respondents did not take any steps under Order XXII, rule 10 of the Code of Civil Proce dure 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 15th December, 1949 for Rs. the Appellant on 8,428/7 /- inclusive of interest and costs with interest on judgment at 4 per cent. per annum till payment. the partners of Habib & Sons were declared Both evacuees and by his order dated the 2nd August, 1950 the Custodian of Evacuee Property, Bombay confirm ed the transaction of transfer of the business of Habib & Sons to the Respondents as evidenced by the agree the 7th February, 1949. A communica ment dated tion to that effect was addressed by the Custodian a Director of the Respondents on the 11th December, 1950. 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 Pro· cedure to execute the decree obtained by Habib & Sons against the Appellant. That application was by the Respondents as assignees of the decree and the assistance of the Court was mode in which quired was that the Court should declare the Respon- / .. 1 ~ 195_5 :Jugalki'shore Saraf v. Raw Cotton Co. Ltd. Bhagwati], 1408 SUPREME COURT REPORTS [1955] the decree passed transferees against 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 confirmed by the Custodian of Evacuee Property, Bombay and should order them to be substituted for the plaintiffs. A notice under Order XXI, rule 16 of the Code of Civil Procedure was issued by the Court on the 10th May, 1951, call to show ing upon Habib & Sons and the Appellant cause why in favour of Habib & Sons and by them transferred to the Respondents, assignees of the decree should not be executed by the the Appellant. The Appel lant showed cause and contended ( 1) that the deed of assignment the Respondents was not executed by Habib & Sons and (2) that the assignee of the subject-matter of the suit and not of the decree itself was not entitled to apply for leave under Order XX!, Rule 16 of the Code of Civil Procedure. The Chamber Summons was adjourned to Court in order in question to take evidence whether the document was executed by Habib & Sons or not. 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. On the question of law the Court followed the decisions in Purmananddas Jiwan das v. Vallabdas Wallii(') and Chimanalal Hargovinddas v. Gulamnabi(') and held that the Respondents were entitled to execute the decree under Order XXI, rule 16 of the Code of Civil Procedure. in favour of the Appellant An appeal was taken by High Court against this decision of the City Civil Court. The appeal came for hearing before Dixit, J. that the deed of assignment was duly The finding proved was not challenged. But the contention inasmuch as there was no transfer of the decree itself but only of the property the Respondents were not entitled to apply the decree was pressed and was negatived by the learned Judge. The learned that if the language of Order XXI, Judge observed to execute (1) [1877] l.L.R. l l Bom. 5o6. (2) I.L.R. [1946] Born. 276. • - 1· -' . 1955 Jugalkishore Saraf .v. Raw Cotton Co. Ltd. BhagwatiJ. S.C.R. SUPREME COURT REPORTS 1409 rule 16 was strictly construed it seemed to hini that the Respo~dents had no followed the decisions m Purmananddas Jiwandas v. V allabdas Wallji( 1 ) and Chimanlal Hargovinddas v. Gulamnabi ( 2 ) and dismissed the appeal. case. But he the assignee an assignee for A Letters Patent Appeal was filed against this deci sion of Dixit, J. and it came on for hearing and final disposal before a Division Bench of the High Court constituted by Chagla, C.J. and Shah, J. The Divi sion Bench also were of the opinion that if one were to construe Order XXI, rule 16 strictly there was no assignment of the decree in favour of the respondents. the High They however were of the opinion that Court had consistently taken the view that there could be an equitable assignment of a decree, which would the purpose constitute of Order XXI, rule 16 and that what the Court must consider was not merely a legal assignment but also an assignment which operated in equity. They then considered the two Bombay decisions which had been relied upon by the City Civil Court as well as by Dixit, J. and came to the conclusion that the deed of assignment fell within the principle of that it constituted an eqliitable assignment decisions, of the decree which was ultimately passed in favour of Habib & Sons, that execution was maintainable under Order XXL rule 16 and dis the appeal. The Appellant. applied for and missed 133 obtained ( 1) ( c) of the Constitution. the necessary certificate under article the application for Order XXI, rule 16 provides for an application for transferee of a decree execution by under:- "Where a decree: ................... is transferred by assignment in writing or by operation of law, transferee may apply for execution of the decree the Court which passed it; and the decree may be exe cuted in the same manner and subject to the same if the application were made by such conditions as rlecree-hloder: (1) [1877] I.L.R. I I Bom. 506. ('l) I.L.R. [1946] Bom. 276. 1410 SUPREME COURT REPORTS [19551 1955 Jugalkishore Saraf v. Raw Cotton 'Co. Ltd. · Bhagwati J. Provided that, where .the decree ................. . transferred by assignment, n.otice of· such has been application shall be given to judgment-debtor, and the decree shall not be executed (if any) to until the Court has heard their objections . ,, its execuaon ......................... . the transferor and . The transfer contemplated under this rule is either It by assignment in writing or by operation of law. was not contended by the Appellant at any stage of the proceedings that there was in this case a transfer by operation of law or that the agreement dated the 7th February 1949 was not an assignment of all -the rights which Habib & Sons had in connection with the Indian business. The question therefore that falls to be considered is whether the deed of· assignment a transfer in writing within the of. the decree by meanirig of Order XXI, rule 16 of the Code of Civil Procedure. the 7th February 1949 operates as assignment '. - A strict and narrow construction has been put upon. the. worc\s "where a decree.· ... is transferred by assignment in writing" by the High Court of Madras in Basroovittil Bhandari v. Ramchandra Kamthi(") and .the , decisions following. it, pa~ticular)y Kangati Ma~a­ nandi Reddi v. Panikalap. ati Venkatappa .& Another ( 2 ) and by the High :c0urt of. Calcutta in Mathurapore Zamindary .Co. Ltd, v. Bhasaram Manda! (") which is followed . in Prabashinee Debi v. Rasiklal Banerji · ('). They · have held that 'the words "decree-holder" rhust be construed as meaning decree-holder 'in fa2t and including ·a .Party . who in equity rriay. after not as the · actual wards become entitled language of Order XXI, decree-holder and rule 16 (old· section 232) cannot be construed so as to apply ·to a case ·where there was no decree· in existence at the time of . the ·:assignment and this ·position was J. and by· the Division in effect conGeded by Dixit, -Berich when -they observed that on •a strict construe- to the rights of that the · ( ;) (;907) i7 Madra~ L'aw .Journal"391. (2) A.LR. 1942 Madras 21. (3) (1924) I.L.R. 51 Calcutta 703. (4) (1931) I.L.R. 59 Calcutta 297. - S.C.R. SUPREME COURT REPORTS Hll tion of Order XXI, rule 16 there was no assign_ment of the decree in favour of the Respondents. A contrary view has however been taken by the High Court of Bombay in Purmananddas Jiwandas v. and Chimanlal Hargovinddas v. Vallabdas Wallji(1) Gulamnabi (2). These Jessel, equitable principle enunciated M. R. in Collyer v. !Jaacs( 3 two decisions have applied 'by Sir George ) as under:- 1955 Jugalkishore Saraf v. Raw Cotton Co. Ltd. Bhagwati ]. - ' "The creditor had a mortgage security on exist ing chattels and also the benefit of what in form was an assignment of non-existing chattels which might the premises. That be afterwards brought on fact, constit:Uted only a contract .to assignment, the after-acquired chattels. A mar.i cannot give him in equity, any more than at law, assign what has no existence. A man can contract to assigri property which the future, and when it is to come into existence in has come irito existence, equity, treating as done that which ought to be done, fastens. upon that property, and the contract to assign 'thus becomes a complete assignment". The ·High Court of Calcutta also applied the same principle in Purna Chandra Bhowmik v. Barna Kumari the High Court of' Madras . in Kangati Debi(') and Mahanandi Reddi v. Panikalapati Venkatappa and the matter were res integra another(") observed that if much might perhaps be said for the contention the assignee under simi_lar · circumstances . . could exe cute the' decree under Order XXI, rule 16. · · the notice of The decision in Purmananddas Jivandas v. V allab das Wallji( 1 )' and the equitable principle enunciate_d therein was brought to learned Judges who decided· the case of ·Mathurapore· Zamin dary Co. Ltd. v. Bhasaram Mandal( 6 ) but was· nega they relied upon the observations tived · by them and somewhat similar provision contained in Section 208 of Act . VIII of 1859 in the, case of Abedo.onissa Khatoon v. Ameeroo nissa Khatoon (7): • the Privy Council in dealing ·with a :(1) (1877) l.L.R: 11 Born. 506. (3) L, R. 19 Ch. D. 342. . (:i) A.;I.R. 1942 Madras 21: (2) l.L.R. 1946 Born. 276. (4) I. L. R. [1939] 2 Calcutta 341. (6) [1924] I.L.R. 51 Calcutta 703. (7) (1876) L..R.,4 L.A. 66. ··' . ; 1955 Jugalkishore Saraf v. Raw Cotton Co. Ltd. ' BhagwatiJ. 1412 SUPREME COURT REPORTS [1955] to observe, "Their Lordships have· further they agree with the Chief Just; ce in the view which he expressed,-that this was not a section intended to apply to case~ where a serious contest arose with respect to the rights of persons rest in a decree". Rankin, C.J. laid stress upon this aspect of the ques tion and delivered a similar opinion in Prabhashinee Debi v. Rasiklal Banerji(' ) at page 299 :- to an equitable the courts "There seem to be two possible views of the rule. One view would be to say that there must be a decree in existence and a . transfer in writing of that decree. That is the strict view-a view which the courts in India taken. The. only other possible view would be to say that, while other cases are within the rule-such as cases where a person claims to be en to the benefit of titled 'in equity under an agreement the decree-it is optional with to give effect to the rule according as the case is a clear one or one which requires complicated law unsuited for dis facts or difficult questions of cuss10n on a mere view, if it were understood that the court had a com to apply the rule or not, it might be plete discretion that the rule would be workable; but I do not that any such discretion as to be given by the rule" and he in his conclusion by relying upon the deletion of the words "if that Court thinks fit the de.cree may be executed" 1908 was enacted. that is !ntended fortified himself the Civil Procedure Code execution application. investigation of In Order XXI, rule 16 of is a statutory provision for execution establishes his the Code of Civil Proce for execution by transferee of a· decree and unless and until a person applying transferee of ·a decree he cannot claim the. benefit of that provision. He may establish his title by proving that he writing or by operation of Transfer of Property Act defines a "transfer of pro- is a transferee of a decree by assignment law. Section 5 of title . as (1) [1931] I. L. R. 59 Calcutta 297. - ..1, - 1955 Jugalkishore Saraf v. Raw Cotton Co. Ltd. Bhagwati]. S.C,R. SUPREME COURT REPORTS 1413 perty" as an act by which the transferor conveys pro perty in present or in future to the transferee or trans fern~s. A transfer of a decree by assignment in writ ing may be effected by conveying the decree in present or in future to the transferee. But even for the trans fer to operate in future the decree which the sub ject matter of the in existence at the date of the transfer. The words "in present or in future" qualify the word "conveys" and not· the word "property" in the section and it has been held that a is not in existence operates as a contract to be performed future which may be specifically enforced as soon as the pro perty comes into existence. As was observed by Privy Council in Rajah Sahib Perhlad v. Budhoo(1) :- transfer of property that transfer must be the property comes "But how can there be any transfer, actual or constructive, upon a contract under which the vendor sells that of which he has not possession, and to which he may never establish a title? The bill of sale in such a case can only be evidence of a contract to be per formed future, and upon the happening of a con tingency, of which the purchaser may claim a specific performance, if he comes into Court shewing that he has himself done all that he was bound to do". the equitable principle It is only by the operation of that as soon as into existence taking as is capable of being identified, equity done that which ought to be done fastens upon thus becomes a property and the contract complete equitable assignment. In the case of a decree to be passed in the future therefore there could be no the decree unless and until the decree assignment of to assign fastened on was passed and the agreement the decree and thus became a complete equitable assignment. The decree not being in existence at the date of the transfer cannot be said to have been trans the matter ferred by the assignment in writing and resting merely in a contract to be performed future which may be specifically enforced as soon as transfer the decree was passed there would . be no to assign ( 1) [1869] 12 M. I. A. 275. - l 1955 Jugalkishore Saraf v. Raw Cotton Go. Ltd. Bhagwati ). 1414 SUf']lEME QOURT REPORTS [1955J the contract in. favour of the "transferor" the "transferee" of automatically decree when passed. It would .require a further act on the part of to completely effectuate the transfer and if he did not do so the only remedy of the "transferee" would be, to sue for specific per to transfer. There would formance of therefore be no legal decree to be passed in future. by virtue of the assign ment in writing executed before the. decree came into existence and the transferee could claim that the decree was transferred to him by assignment in writing would ·be by the operation of the equitable principle above enunciated and .the con to assign having become a complete equitable assignment of :the de~ree. transfer or assignment of the only way in which ·relates 'in order construing assignment in · which. an Is there any warrant for importing tllis equitable principle while statutory provision enacted in Order XXI, rule 16 ·of· the Code of Civil Procedure? The Code of Civil · Procedure does not prescribe · ahy mode to effec writing has got to be executed tuate a transfer of ·a decree. The only other statutory provision i;, regard . in writing is ·to to assignments be found in Cha pt er VIII of the Transfer, of Property transfers' of actionable Claims Act which and an actionable claim has been defined in section 3 of the Act as "a claim to . any debt. ........... or to in moveable property not in any ·beneficial : interest the possession, . either . ·actual or constructive; of the Civi-1 Courts recognize as ·afford- claimartt, which ing 'grounds for relief ...... : ... ". ·A judgment debt or decree is not· ·an actionable · claim· for no· action necessary the sub is · secured ·by · the · decree.·· A ject : of . an action and decree to be ··passed in future· also does not tome ·as such' within ·rhe definition of an ·actionable claim -and an assignment or -transfer thereof need 'not ·be effected in the manne~ prescribed hy sectidn 130 of the Trans If therefore the assignment· ·or fer of Property -Act. transfer of a decree to- ' be ' passed the -future · does hcit" require to ·be effectuated in the manner prescribed in the stan1te there would be no objection it. It has already been to tealise ... y 1955 Jugalkishore Saraf v. Raw Cotton Co. Ltd. Bhagwati J. - ... S.C.R. SUPREME COURT REJ?ORT,S 1415 the decree the operation of to be passed would fulfil in so far· as the decree would the equitable principle above enunciated operation of and the contract to assign evidenced by the assign ment in writing becoming a complete equitable assign ment of the decree when passed. The assignment thus re writing of sult in a contract to assign which contract to assign would become a complete equitable assignment on the decree being . passed and would quirements of Order XXI, rule 16 assignment or the transfer of that. event be cfiectuated by an assignment in writing which became a complete equitable assignment of the the provi decree when passed. There is nothing sions of the Civil Procedure Code or any other law this equitable princi which prevents ple and in working out the rights and liabilities of the transferee of a decree oh the one hand and the decree holder and the judgment debtor on the other, there is no warrant for r.eading the words "where a decree transferred by assignment in writing" .............. is in the strict· and narrow sense they . have been read ·by the High Court of Madras in Basroo vittil Bhandari v. Ramchandra Kamthi(1) and the High Court of Calcutta in Mathurapore Zamindary Co. ·Ltd. v. Bhasaram Mani:lal(2) and Prabashinee · Debi v. R.a siklal Banerji( 3 High Court of Calcutta in Purna Chandra Bhowmik v. Barna 'Kumari Debi( 4 ·applied this equitable principle and held that the plaintiff in whose favour the defen dant had executed a mortgage bond assigning bv way tha.t would be passed ' in a of sec:unty the decree suit . instituted by him against a third party · for covery of money . due on unpaid bills for work done wa.s entitled ·to: a .declaration that he was the assignee of 'the decree passed ·. in · favour of the defendants ·and to ·realise the decretal debt either was as such entitled ·If the ··plaintiff was amic·ably or by execution. declared to be the assighee of the •decree< subsequently in favour of the defendant and · entitled · to passed realise :decteta:l amount by. execution he could ). It is significant to observe in· which ) (1) [1907] 17 M.L.J. 391. (3) [1931] l.L.R. 59 Cal. 297. (2). [1924] I.L.R.51 Cal. 703. (4) I.L.R. [1939] .2 Cal. 341. 1955 Jugalkishore Saraf v. Raw Cotton Go. Ltd. ·-BhagwatiJ. SUPREME COURT REPORTS [1955] for execution of the decree and avail himself of the provisions of Order XXI, rule 16 as . the assignee of the decree which was passed subsequent to the date favour. There the assignment in writing in his could be no objection to decide questions involving facts or difficult ques investigation of complicated tions of law in execution proceedings, as section 47 of the Code of Civil Procedure authorises the Court exe cuting the decree to decide all questions arising there in and relating to execution of the decree and sub section (2) further authorises the executing Coiirt · to treat a proceeding under the section as a suit obviating the necessity of filing a separate suit for the determination of the same. The line of decisions of the High Court of Bombay beginning with Purmana11d das /ivandas v. Vallabdas 'Wallji(') and ending with v. Gulamnabi(') · importing Chimanlal Hargovinddas therefore appears to me to be more in consohance with law and equity than the strict and narrow interpretation put on the words "where a decree ............ is transferred by assignment in writing" by the High . Courts of Madras and Calcutta in the decisions above noted. principle above enunciated equitable the future Even if an equitable assignment be thus construed as falling within an "assignment in writing" contem plated by Order XXI, rule 16 of the Code of Civil it would in terms. require an assignment of Procedure the decree which was to be passed In the present case, it is im favour of the assignor. possible to read the deed of assignment dated the 7th February, 1949 as expressiy or by necessary implica tion assigning in favour of the Respondent the decree which was going to be ·passed by the City Civil Court in favour ·of Habib & Sons. There is however another aspect of the matter which was not urged before it appear Courts below judgments to have been considered in most of above referred . to. in the present case nor does - ... ... There is no .doubt on the authorities that a mere such does not by itself spell out transfer of property as (1) [1877] I.L.R: 11 Born. 506, (2) I.L.R. 1946 Born. 276. l 1955 ...,...,,,. Jugalkishore Saraf y. Raw Cotton Co. Ltd. Bhagwati]. S.C.R. SUPREME COURT REPORTS 1417 in order the claimant, which a transfer of a decree which has been passed or may in respect of that property/ and it would be passed require an assignment of such decree effectuate the transfer (vide Hansraj Pal v. Mukhraji Kunwar & others(1), Mathurapore Zamindary Co. Ltd. v. Bhasaram Mandal(2), and Kangati Mahanandi Reddi v. Panikalapati Venkatappa & another( 3 ). Where however is an actionable is transferred the property which claim within the meaning of its definition in section 3 of the Transfer of Property Act the consequences of such transfer would be different. An actionable claim means a claim to any debt, or to any beneficial rest in moveable property not in the possession, either actual or constructive, of Civil Courts recognize as affording grounds for relief, and a transfer of an actionable claim when effected by an instrument in writing signed by the transferor is under section 130 of the Act complete and effectual upon the execution of such instrument, and thereupon all the rights and remedies of the transferor, whether by way of damages or otherwise, vest feree, whether such notice of the transfer as is therein provided be given to the debtor or not. If the book is an actionable claim is debt or the property which thus transferred by an assignment in writing all the rights and remedies of the transferor in respect there of including the right to prosecute the claim to judg ment in a Court of law either in a pending litigation or by institution of a suit for recovery of the same vest in the transferee immediately upon the execution thereof. transferred but Not only is the actionable claim thus thereto are transferred along with the same to the transferee. Section 8 of the Act provides that unless a different is expressed or necessarily implied, a trans intention fer of property passes forthwith transferee all the interest which then capable of incidents passing in the property and thereof. These incidents include where the property the assignment as a necessary corollary the necessary adjuncts or appurtenances transferor - (1) [1908] I. L.R. 30 AU. 28. (2) [1924] I.L.R. 51 Cal. 703. (3) A.LR. 1942 Mao. 21. 1955 -Jugalkiihore Saraf v. ROw·Cotton C•. Ltd. Bhagwati]. 1418 SuPREME COURT REPORTS [1955) the decree and in writing already executed by is without anything more entitled a debt or other ·actionable claiin, the securities!·: there- for. ............... but not arrears of interest ·accrued In cases· of transfer of book debts before the transfer. the definition. of ': a<:tion or property coming within able claim there is therefore necessarily involved also a transfer· of the transferor's right in a decree which may be passed in his favour in a pending litigation is passed in his favour by and the moment a decree that decree· is also automatitall y the ·court of law, transferred . '1 favour of transferee by virtue of the assignment transferor. The debt which the subject-matter of the' claim· is merged in the decree and the transferee of the actionable claim becomes entitled by virtue of the assignment in writing in his favour not only to the book debt but :also to the decree in which it has merged. The book debt does not lose its · character of a debt by its being merged transferee to the benefit of the decree passed by the court of law in favour of the It would have been open the execution of the ·deed of to the transferee after to take steps under Order assignment XXII, ·rule 10 of the Code of Civil Procedure to have the pending litigation as plain himself substituted in tiff in place and stead of the transferor and prosecute the claim to judgment; but even if he did not do so he is not deprived of the benefit of the decree ulti the court of law in favour of· the mately passed by to his posi transferor, tion being that under section 132 of the Act he would the liabilities take the actionable claim subject to all to which the and equities transfer. The respect transferee of into the shoes of the transferor and claim to be the transferee of the decree. by virtue of the assignment favour in his. 'in writing executed by the transferor and could therefore claim to execute the decree as transferee under Order XXI, rule 16 of the Code of Civil Procedure. the only disability attaching transferor was subject the actionable claim in his favour the date of thus could transferor. thereof This aspect could not be considered by the High .. ... 1955 Jugalkishore Saraf v. Raw Cotton Co. Ltd. BhagwatiJ; S.CR. SUPREME COURT REPORTS 1419 the assignment Court of Bombay in Purmananddas- /ivandas v: Vallab das Wallji(1) because there was exe cuted on the 11th May, 1870, i.e. before the enactment of the Transfer of Property Act in 1882. The Court therefore applied the equitable principles and came to the conclusion that the equitable assignment which. was completed on the passing of the decree was covered bv the old section 232 of the Code of Civil Procedure. lt was also not considered by the Full Bench of High Court of Bombay in Chimanlal Hargovinddas v. ·Gulamnabi(2) nor by Dixit, J. or by the Division Bench in the present case. The High Court of Patna Thakuri Cope and Others v. Mokhtar Ahmad & An ) , went very near it when it observed that all -0ther( 3 that was transferred was an actionable claim, but did not work out the consequences thereof and its reason ing was deflected by the consideration of the equit able principles and the applicability thereof while con struing the provisions of Order XXI, rule 16 of the Code of C!vil Procedure. The High Court of Calcutta in Purna Chandra Bhowmik v. Barna Kumari Debi (4) definitely adopted this position and observed at p. 344:- . "In my opinion, what was transferred was daim to a debt and as such would come within the definition of actionable claim as given in section 3 of the Transfer of Property Act. The mere the claim was reduced by the Court did not make; in my opinion, any difference". It no doubt applied the equitable principle also and that the mortgage must be deemed tu have at tached itself to the decree which was for a definite amount as soon as the decree was passed, but further to a declara the plaintiff was entitled observed tion that she was an assignee of the decree and if she got that declaration it would be open to her to apply for execution of the decree under Order XXI, rule 16 of the Code of Civil Procedure. I am sure that if this properly pre aspect of sented the question had been the Division Bench to Dixit, J. or (1) [1877] I.L.R. 11 Born. 506. (3) A.LR. 1922 Patna 563. (2) I.L.R. 1946 Born. 276. (4) I. L. R. [1939] 2 Cal. 341. :055 Jugalkis!Wie Saraf v. Raw. Cotton Co. Ltd. BhagwahJ. 1420 SUPREME COURT REPORTS l '19-~1 J~_, present case they also would have come to the same conclusion. the deed of assignment dated Mr. Umrigar, learned counsel for the Respondents; further urged that even if the Respondents were not entitled to the benefit of Order XX!, rule 16 of the Code of Civil Procedure they were the true owners of the debt and the decree which was ultimately passed by the City Civil Court in favour of Habib and Sons by virtue of the 7th February 1949 and that under section 146 of the Code of Civil Procedure execution proceedings could be taken and application for execution could be made by them as persons claiming under Habib & Sons. The the debt which was deed of assignment transferred the subject matter of City Civil Court between Habib & Sons and Appellant. Habib & Sons could have taken proceed- in execution and made the application for execu- tion of the decree against the Appellant and the Res pondents claiming under Habib & Sons by virtue of the deed of assignment were therefore entitled to take the execution proceedings and make the application for execution under Order XXI, rule 11 of the Coc!e of Civil Procedure. He also urged that Order XXI, rule 16 of the Code of Civil Procedure did not prohibit such execution proceedings at Respondents and for observations of the learned Judges of the High Court of Madras in Kangati Mahanandi Reddi v. Panikalapati Venkatappa & another (') at page 23 :- this purpose instance of relied upon the pending litigation "We are unable to hold that merely because rule to ·decrees 16 has been interpreted as applying only it prohibits m existence at the time of the transfer, an application by a transferee who obtained the trans- fer of a decree, a transfer which is legally valid and is embodied in a written deed (as rule 16 requires) be- fore the necree was actually passed. To permit execu- tion by mch a transferee, in our opinion, in no way violates the principles which are embodied in rule 16 or in Order XXI generally. The appellant here is the (1) A.LR. 1942 Mad. 21 •• -~· -.' ... .. ~ 195:, Jugalkishore S•,a.f v. Raw Cotton Co. Ltd. BhagwatiJ - - S.C.R. SUPREME'COURT REPORTS 1421 is obviously unsound. Order XXI, true owner of the · decree,· and he has his written -deed, and that· is all that the law requires'' .. It was however urged on behalf of the Appellant that section 146 did not apply because Order XXI, rule 16 was a specific provision in the Code of Civil Procedure which applied when a person other than a decree holder wanted to execute the decree and if the Respon themselves of Order XXI, rule dents could not avail 16 of the Code of Civil Procedure they could not avail themselves of section 146 also. Reliance was placed in support of this contention on a decision of the High Court of Patna in Thakuri Gope and others v. Mokhtar Ahmad and another( 1 ) and another decision of the High in Shib Charan Das v. Ram Court of Allahabad the Appel Chander & Others(2). This contention of rule 16 pro instance of a vides · for execution of a decree at the transferee by assignment in writing or by operation of law and enables such transferee to apply for execu tion of the decree to the Court which passed it. If a transferee of a decree can avail himself of that provi sion by establishing that he is such a transferee he must · only avail himself of that provision. But if he to· establish his title ·as a transferee by assign law within the ment in writing or by operation of meaning of Order XXI, rule 16 of the Code of Civil Procedure there is nothing in the provisions of Order XXI, rule 16 which prohibits him from availing him self of section 146 if the provisions of that section can is the only meaning of be availed of by him. That the expression "save as otherwise provided by Code". If a person does not fall within corners of the provision of Order XXI, rule 16 of the Code of Civil Procedure that provision certainly does not apply to him and the words "save as otherwise provided in this Code" contained in section 146 would not come in . the way of his availing himself of section . 146 because Order XXI, rule 16 cannot then be con strued as an "otherwise provision" contai11ed I am therefore of the opinion that if the Res Code. pondents could not avail themselves of Order XXI, (1) A.I.R. 1922 Patna 563. 16-9) ·s. C. India/59 (2) A.I.R. 1922 All. 98. 11122 [1!955] •955 Jugdlkislzore · Saraf v. Raw Catton Co. Ltd. B~agwatiJ. ;the. ,circumstan\:es · •@f rule .Hi' of, the• C0de ;of 1Ci,vil ,ProGedµre they p;iµJd .cer tainly under the, · prqent ... case ~ake the ··:execJ.ition. :pr.©ceedUi;gs .and .make ,):he. :1ppli ·cation for execution of .the decree pa5ied , by: .. the City Civil Court in fa"our of Habib & Sons under section .146 •©f the Civil P.i;ocedure Code. , ' .any of that· :particulars in r.egard to :of Evacuee Property, Bombay . A.n objection was however. taken •on behalf of the :Appellant during ·the .course : 1of. the argu!'l}~nts before :us though'. ll'to such objection was taken ip ·the Couns below, .ihat :the ·application :for execution ,made by the Respondents was u;ldeative inasmuch as it was ·not an application 'in proper form . under Order XXI; 'rule 11 .of the Code. nf. Civil .Procedure. Qrder XXI, rule 11.(2) ('j) prescribes the. mode in whicli. the :assistance of required the ·Court was therein. The .respondents had . in should be set out ·execution filed. before .the City their application Civil , Court not mentioned these particulars ·but had only stated the Court should declare them the assignees ·of .the decree as the , decretal debt transferred , by Habib ,& :alon:g with ·other ·debts were Sorrs to , .tihem by :the deed caf assignment dated .7th February 1949 which was ·con'firmed by, the Cus toaia:n should order :them to be substituted for Habib & .Sons.· This was mo compliance with the provisions ,of -Order XXI, '.rule 11'(2) (j) . and therefore there was no .proper. ·applica tion for execution before the Court and n:he same was liable to be dismissed. Reliance was place.cl ·in support :of this contention ,on .a decision, of the High ·Court ·of Calcutta ~n J$.adha Nath ]}as v. Produmna .Kumar Sar- 1'\ar('), ;where >it was held dissenting from a decision of the High Court of Bombay . in Baijnath . Ram chander· "" Binjraj foowarmal Batia.& Co:(') that under Order XXI, mle 16 •of the Code ·of Ci.vii Procedure. the :applications, .assignee .. : of. ·a ·decree cannot . make two. :one for- ·another :assignment and executling . .'the «lecree. 'The as.siguee ·df . a decree, could .only ma'ke,.one•'application for :execution •under •Order XXI, .. r;uk 11. .of the Code :of·.Civil Prncedure specifying ;fuerein,;the. mode .·in which ;the assistance .. of the.•Court (') I. L. R. [rg39) 2' C~lcutta 325. 'teG©rding . the . ' - (2) I.L.R.i93,7 Bombay 09>. '' l. {' . .1 . • ' ' ' - ' '· ' . ~ - - i .... was . !!~.quired and it was :only ·;after. 1such applimtiqn had been made to the ·C0urt. ·which . passed the. .decree tha,t the Court woµld issue notice under, Order ,XXI, rule 16 . to the . transferor aqd . the judgment debtor and the. decree would not •be .executed until the Court had heard . their obfeccions if any to :its 'execution. Sen~ J. in that case observed at page 327 :-- · 11955 :jt; galkiskore . .Sartif v.; :Raw Catton Co. Ltd. 'B,hagwatiJ. , foundation. Order XXl, "It seems to me to be o,bvious from the wording of t11e rule that there. can be no notice to the transfewr or ' judgment-debtor and' no he;µ-ing of any ' objection unless and until there is an application for execution. the entire proceedings · under Order The notice and XXI, rule 16, orjginate from an application for .exe If .there -is no sµch application .the proceed cution. ings are. without . any 16, of the Code nowhere provides for an application to :record an assignment .or for an application for leave .to execute a decree ~y .an assignee or for an applica- tion for substitution". This in my opinion correctly sets out the position ·in law .and in so . far as the two decisions of the High Court <Gf Bombay in Baijnath Ramchander v.. Binjnzj Joowarmal Batia & Co.(1) and Krishna Govind Patil v. Moolchand Keshavchand Gujar( 2 .decide anything to ) they are not .correct. The .position was the .contrary clarified by a later decision of the High Court of Bombay in Bhagwant Balajirao and -Others v .. Raja ram Sajnaji & Others(3) where Rajadhyaksha Macklin, JJ. held, following Radha Nath !Jas v,. Pm dumna Kumar $arkar( 4 .that an application made by -an assignee of a .decree must under O.r.der X:XI, rule 16 be for the executioa of the decree and not merely for the recognition of the assignment and for leave to execute the decree. Lt ·was .urged before . the . learned Judges· that .the practice in the High Courl of ,Boµibay to. entertain :applications of _this kirid, but; they observed that the ,practice if such a practice· prevfii)ed v,vas: opposed . to :the, pi:oyisions .of the Order. X~, . rule 16. of the Co.de of. Civil Pr9cedu,t:e. The ~ont(1Iltion t~erapi::e :i,i,rged on.· be, half ro.f . the. · AppeJ,l~nt ,,.;1:µ<1r.1, the (2) A.I .. R. 194i ,B<>1r» 302 ,(l'.B.). (4) I. L ... R. '[193g.); z 'C:a\;. 325. ~ .. (1) I.L.R. 1937 Born. 691. (3) A.LR. 1947 Born. 157· -·· - . ' ) -, " 1955 :JugalkishMC · sartfJ v.: Raw Cotton Co. Ltd. Bhagwati ], 1424 SUPREME COURT REPORTS [-19551 _ . . respondents •were application for· execution :·in the present case ·.was de · ' fective appears to have some foundation.: • This defect however · was· not ·such as lo preclude the Respondents from obtaining the ·necessary " rdie[ The application which was filed by' them 'in -the" Cicy Civil Court for· ·execution ·was headed "application under Order XXI, rule 11 of the Code of Civil · _Pi:oce' dure" and the only defect ·was in the specification _of the mode in which 'the assistance ·of the Court was re' quired: The particulars which were required· to be filled in column ·l were not in accordance with the require ments of Order XXI, rule ll(Z)(j) and· sh:oiild have specified one· of the modes therein prescribed ·and cer tainly 'a declaration· that assignees of the decree and · the order for their substi tution af the pliintiffs was certainly . not one of the prescribed modes which· were required to be ·specified in that column. · ·The. 'practice 'which prevailed in the Bigh Court of J3ombay as recognised· in · Baijnath Ramchander v. Binjraj foowarm·at Batia & Cb.C1) and :and. others v .. Rajaram in Bhagwant Balajirao Sajnaji & others(') appears the only to have been justification for making the application: iri the manner which · the respondents · did. That defect however according to the very same ·decision in Bhagwant Ea lajirdo and others v. Rajaram Sajnaji & others(') ·was purely technical and might be allowed to l:le cured by amendment of Order XXt, rule 17 lays down the procedure on .receiv- ing applications for execution of a decree and enjoim upon the Court the duty 'to ascertain whether · such of -the requirements of rules 11 to 14 as may be ar plicable to the case have been complied with and ·if they have not been complied with the Court has ·to reject the application or allow the defect to be rem edied then and there or within a time to be fixed by it. When the application the present case was received by the City Civil Court, the Court the application as required by should have scrutinised Order XXI, rule 17(1) and if it was found the application. As ·a matter of for execution (1) I.LR. 1937 Born. 691. (21 A.I~R. 1947 Born. 157. - ·1955 Jugalkishore ·Sarqf y., Raw Cotton Co. Ltd. BhagwatiJ. ..,. S.G;R. SUPREME COURT REPORTS H25 requirements of rules U to 14. as may be applicable were not complied with as .is . contended for by the Appellant; the. Court should have rejected. the appli cation or allowed the· defect to be remedied then and there or within a time to be fixed by the Court. Noth ing of the kind was · ever .done by the City Civil Court nor was any objection in that behalf· .taken on behalf time until the mat£er - came of the Appellant at -,any · . . before this Court. . . . . . . . . . · . . the Court . was On. the . 27th March, 1952 however a further appli cation for . execution was filed . by the . Respondents. in the City Civil Court specifying in column 'J' .the mode in which .the assistance of required and it was by ordering attachment.and sa.le .. of moveable property of. the Appellant therein specified. This further applicatio.µ for execution was a sufficient compliance with the provisiqns of Order XXI, rule 11 (2) (j) and was sufficient under cure the defect, if any, in the . original application. for execution made by the Respondents to the City Civil Court on . the 25th April, 1951. This objection of the Appellant therefore is devoid of any substance . and does· not avail him. the . circumstances • The appeal accordingly fails and 1s dismissed · with costs. IMAM J.-I have had the advantage of perusing the judgments of my learned brethren·. .that the appeal must be dismissed with costs and view expressed by them that the respondent should be permitted under the provisions of section 146 of Code of Civil Procedure to execute the decree passed in favour of Habib & Sons, as one claiming under the latter. I agree The document under which the respondent· claimed to exernte the· decree· was treated as a deed of transfer in the .courts below and not merely ·as an agreement to transfer, By. this document there was a· transfer of all the book and. other debts due to Habib & Sons in con nection wich the full benefit the Indian business and the debts. The · document, how of all securities . for inter- ever, neither in terms, nor by any reasonable , ' 142U: .'. ' SUPREl\IE .COURT REPORTS . ' . . \ . . . . . . . [1955]' ., rgss· g . . · . Co.Lta.'· \ ..-.· kaw Cotton . · pretation of its contents :purported to· transfer ·any ; . alkishore·s~,;1 _decree which Ha.bib & Sons may obtain in the fu.ture. It seems. to me, therefore, that the respondent. can- • not claim to be a transferee of the decree; which was subsequently 'obtained by Habib & Sons, by.an assign- . ment in writirig within the meaning ·of Order XXI, rule 16 of the Code of Civil Procedure. ·, Order XXI of the Code of Civil' Procedure' relates to execution of decrees and orders. . ·Rule 1 of that Order relaies to payments under a decree which· has been passed:· Rules 4 to 9. relate to the transfer of an existing decree for execution.· The normal rule is that a decree can be executed only by the person in whose nanie it ·stands and rule IO enables him to do so, :while l'ule 16 of Order XXI; enables· the transferee of the decree 'to execute it in the same manner · and subject to the same conditions as an' application for execu tion made by the decree-holder. · It seems· to ·.me, therefore, that there must be a decree· iii·' existence which is transferred before the transferee• can benefit from the provisions of rule 16.' ~ ·. The . ordinary : and natural meaning ·of tlie· words' of rule' 16 can carry: no .. other interpretation and the question' of a strict and narrow interpretation of its provisions .does not arise. The position of an assignee, before a decree is passed, is amply safeguarded by the provisions of Order XXII, rule 10, which enables him' to obtain. the leave of the Courtto coritinue:the suit. Thereafter the decree, if any, would be in his name which he'could execute. I agree with my learned brother Das, J., that the pro• visions of Order· XXI, rule 16 contemplate the actual transfer by a·n assignment in writing of a decree after it' is passed and that while a transfer of or an agree ment 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 : render· the transferee a transferee of the decree by assignment in ·writing •within tire .meaning of Order XXI, rule 16. In this respect the decisions of:the Madras High Court in . Basroovittil Bhandari v. Ramchandra Kamthi(') .. , (1) (1907) 17 M.L.J. 391_, ... ... ! -oj . I S.C~R .. SUPREllIE COURT REPORTS· 1427 and of the Calcutta High Court in. 11Iathurapore Zamindary Co. Ltd. v. Bhasaram · lllandal(') and Prabashinee Debi v. Rasiklal Banerji(') are correct. Juga As at present advised, I would like to express no opinion as to whether the expression "by operation of law" can be given the interpretation suggested by my learned brother Das, J., as it is uiinecessary to do so in the present appeal. . · · · · ·. Appeal di;"inissed. · · · · · · 19;5 lk"-h- '' v":'. ara 5 · / RawC-Otton · Co. Ud. ImamJ. 1955 March 15 SHIVNANDAN ·SHARl\IA . v. THE PUNJAB NATIONAL BANK LTD.· · [ViviA:N Bos~, JAG~NNADHADAS and SINIIA JJ.]. . -- - -. ' . - - ' I . . Master and servant-Banker-Agreement .. between Bank and TreasUrers~Treasurers, wheth'e:Y sirvantS or independent - contractors -Cashier appointed by Treasitrer-Whether servant of the Bank. • • • .. l , . {. _ . · l . The appellant was appoiµted head. cashier in one of the branches of the .respondent Ballk by,'tbe Tfeasurers who .wer_e ~D. charge Qf~h6 Cash Department of the Bank by virtue of an agreeffient between them .. The question arose as to whetner the appellant' was' an•: em· . 1 p!oyee of the Bank. · Held, (i) that the te~s oi the ~gree~ent ciearly showecl that the Treasurers were servants ofthe Bank and not fodependent con~ tractors; and tha~ :-" · ... , •. · ' • 1 · 1 • · t t · · , . · · . , ... .... . Bank. (ii) as the direction and control of the appellant ancl of the ministerial staff in charge of tlie· Cash Departl!lent of the Bank was ··entirely vested.in:the Bank, the appellan~was an.employee of the . If a ma."sier employ"s a s~rvant and autho.rizes hiin-to e~ploy·a number of persons to do a. particular job and -to guarantee_the_ii fide~ lity and efficiency for a cash consideration, the ·employe8s thUS ap pointed by the servant would be, equally with the employer, servants . ! · · ; of the master. · Th.e question a3 to whose employe0 a parlicUlar : person'; hi h~~ to be determined with reference to tb6 facts ·and( circUmstarices 'of ·each individual case, and among the many ~sts · by which to as~r­ tain who is the employer, the most satisfactory one is to ask who fa entitled to tell the employee the way in which ha is to .do the work upon which he is enga:;ed. · ... i , · : . · . (1) [192!] I.L.R. 51 Cal. 703. (2) [1931] I.L.R. 59 Cal. 297. . ' - ! ' t