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Judgment
Romaprasada Rao, J.—The execution petitioner in the lower court is the appellant in the civil miscellaneous second appeal. He is one of the
decree-holders in O. S. No. 1154 of 1947 on the file of the Court of the District Munsif, Coimbatore. The decree was admittedly a joint decree in
favour of Valliappa Chettiar, Lakshmanan Chettiar and Manicka Chettiar, who were partners of a firm called V. V. R. Bank. The decree became
absolute by a final disposal of the suit by the appellate court on 22-8-1951. The partners of the above firm effected a dissolution of the partnership
under a deed of dissolution dated 28-5-1952. In and by the terms of such a deed of dissolution of partner ship, Valliappa Chettiar got one half of
the assets of the partnership including the decree amount, Lakshmanan Chettiar ones fourth and Manickam Chettiar the other one-fourth. In
consequence of the voluntary division of the partnership assert effected by the partners, Lakshmanan Chettiar field an execution application for
himself being recognised as a person entitled to execute one-fourth of the share on the decree amount and sought for a transmission of the said
decree to the District Munsif Court, Dharapuram, for execution. He impleaded in the said petition, the legal representatives of Valliappa Chettiar
who was by then dead, as also Manicka Chettiar. The court recognised the right of Lakshmana Chettiar to execute his one-fourth share in the
decree and it appears that incidentally the said court also recognised the right of Valliappa Chettiar and his legal representatives to one-half-share
in the decree. It is not clear from the record as to what the court did as regards the share of Manicka Chettiar. This order was passed on 1-12-
1954. Later, Manickam Chettiar independently filed an application for a similar relief which was allowed on 29-9-1955. Though Lakshmanan
Chettiar earlier obtained the recognition of his right to execute his one-fourth share in the decree, it was not apparently executed in the common
form. On his death, his legal representatives field an application for such a recognition and for transmission to the District Munsif Court,
Dharapuram, for execution. This application was also ordered on 22-11-1957. From the record it is not clear whether at the time when Manickam
Chettiar filed his application for recognition of his right and transfer and at the time when the legal representatives of Lakshmanan Chettiar filed a
similar application for recognition and transfer the rights of the other decree-holders or their legal representatives were contemporaneously
considered. Suffice it however to say that the application filed by one of the heirs of Lakshmanan Chettiar for recognition of his one-fourth share
and for transmission, was ordered on 22-11-1957. Thereafter, on 11-6-1959, Ramanatha, one of the heirs of Valliappa Chettiar, and as manager
of the joint family, for the first time filed an application for recognition of his half share in the decree and in the first instance sought transmission of
the same to the Subordinate Judge''s court, Erode. This application was not however pursued. For a second time Ramanathan, in the same
capacity, filed another execution application on 8-8-1960, but this time sought transmission of the decree to the District Munsif court, Dharapuram.
This was allowed. Thereafter Ramanathan filed the execution petition in question on 10-12-1960, within the prescribed time and sought execution
of one half of the decree, amount to which Valliappa Chettiar was entitled to. The respondent objected to the issue of process in execution on the
ground that even the first application filed for recognition and consequential transmission of the decree, by Ramanathan on 11-6-1959, was barred
by limitation, since it was beyond three years from the date of the appellate decree, namely, 22-8-1951. It was also contended that in any event it
was beyond three years from the date of the first order of recognition and transmission made by the appellate court on 1-12-1954, at the instance
of Lakshmanan Chettiar. The main contention was that though the decree was a joint decree at the inception, it ceased to be joint by reason of the
splitting of the decree by the partners on the basis of the deed of dissolution and that such a recognition having been given even on 1-12-1954,
each sharer of the decree sought to have filed an execution petition within three years from 1-12-1954. Both the courts below upheld the
objection. The lower appellate court was of the view that the first part of Explanation 1 to Art. 182 of the Limitation Act applies and that the
execution application was bared. The conclusion was that the joint decree passed in the suit became transformed into one of severalty and that the
appellant not having levied execution in respect of his share within three years from 1-12-1954 no process in execution can issue. As against this,
the present appeal has been filed.
The execution application filed by Lakshmanan Chettiar and referred to above, no doubt, impleaded the heirs of Valliappa Chettiar. It appears
from record that Manickam Chettiar was also a respondent therein; but he was ex parte. In these circumstances'' the parent court passed orders as
follows:-
3rd defendant held entitled to execute the decree to the extent of l/4th. Respondents 2 to 6, the legal representatives of Valliappa Chettiar,
transposed herein as petitioners 2 to 6 in this petition Petitioners 2 to 6 entitled to execute the decree to half share. Transmit.
It is this order which is pressed into service by the respondent to plead that the execution petition is barred by limitation. It is not known why the
court did not recognise the right of Manickam chettiar even in that execution petition. But it is clear that the order of transmission, which is the
subject matter of the execution application filed by Lakshmanan Chettiar in which orders were passed on 1-12-1954, related only to the one-
fourth share of Lakshmanan Chettiar in the decree. A formal recognition of the right of the appellant and other members of the family of Valliappa
Chettiar was given in that order, and beyond that nothing happened. No doubt, Manickam Chettiar filed an independent application later got
recognition of his right to execute one-fourth share in the decree and obtained an order for transmission. This does not however matter. The fact
that a bare recognition was given to a pre-existing right of the heirs of Valliappa Chettiar to a one half share in the decree could only stand as a
confirmation or declaration of a pre-existing state of affairs, but cannot, in my view, change the course of law.
It is in this light the question arose whether by the events narrated above, what was originally a joint decree had been superseded by a decree in
severalty. If once a joint decree is passed, and it is not disputed in this case that one such decree has been passed, any voluntary arrangement inter
see between the decree-holders to execute such a decree pursuant to an arrangements as between themselves to recover and execute part of the
decree cannot change the identity and character of the said decree into one of severalty. A decree is a final adjudication of rights as between
parties and such an adjudication can be rendered only by a court of law. If once such a pronouncement en the rights of parties is finally made and
adjudication given, then such a pronouncement which has become final, cannot be changed by the decree-holder''s attempt to realise the fruits of
that decree in parts. Once a joint decree, it is always a joint decree and any step in aid taken by one of the decree-holders, whether it be the result
of an arrangement inter se between the joint decree-holders or by reason of an assignment of a part thereof by one of the decree-holders to a
stranger, would ensure to the benefit of all the joint decree-holders at all times. It is by now well settled that a transfer of a part of decree is valid
and such transferee can execute or joint in execution see Muthunarayana Reddy v. Balakrishna Reddi 19 Mad 306 and Endoori Venkataramaniah
v. Venkatacharlu 33 Mad 80 The CPC makes substantive provisions prescribing procedure and has also enumerated and set out details in the
matter of such procedure as well. To illustrate, Ss. 52, 141, 146 etc., are the substantive provisions relating to procedure; Or. XXI and the rules
framed thereunder enumerate the details legally necessary in the course of execution of decrees. S. 146 of the C.P.C. contemplates the transfer of
a part of a decree and execution by the transferee of the same. It has been repeatedly held by our Courts that Order XXI rule 16 cannot stand in
the way of the application of S. 146 in case of transfers of a part of a decree. In fact, such a transferee is considered and deemed to be a joint
decree-holder. He can under Or. XXI, rule15 establish his rights as such transferee by executing the decree himself. These are well recognised
propositions. In the light of this it has to be considered that if a joint decree-holder by virtue of an agreement between himself and the other co-
decree-holders becomes entitled to a part of the decree, is he not entitled to execute the decree in his own right as a joint decree-holder. In
principle I do not think there is any difference. If a transferee of a part of decree has to be recognised as a joint decree-holder, then it would be
unreasonable to hold that a decree-holder on record who is admittedly a joint decree-holder and who by virtue of an arrangement between himself
and the other decree-holders secures a fraction of a right in the decree and thereafter seeks execution, is not a joint decree-holder. This is where
the salient rules of once a decree is joint it is always joint, implements itself. As the Supreme Court has pointed out in Jugal Kishore v. Raw Cotton
Co, AIR 1955 S.C. 376.
There is nothing in O. R. 21,16, which expressly or by necessary implication 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 for execution which the person from whom he claims could have made.
This statement of law is an answer to the contention of Mr. D. Ramaswami Iyengar that O. XXI R. 16 is not applicable to the instant case.
One other contention of Mr. D. Ramaswami Iyengar is that the first portion of Explanation 1 to Art. 182 of the Limitation Act applies to the
facts of this case and that therefore the execution petition is barred. It is not in dispute that old Art 182 of the Limitation Act, 1908, to applies to
the instant case. In particular the text of Explanation 1 thereto has to be construed. Explanation 1 runs as follows:--
Where the decree order has been passed severally in favour of more persons than one, distinguishing portions of the subject matter as payable or
deliverable to each, the application mentioned in Cl. 5 of this Article shall take effect in favour only of such of the said persons or their
representatives as it may be made by. But where the decree or order has been passed jointly in favour of more persons than one, such application,
if made by any one or more of them or by his or their representatives shall take effect in favour of them all. Where the decree or order has been
passed severally against more persons than one distinguishing portion of the subject matter as payable or deliverable by each, the application shall
take effect against only such of the said persons or their representatives as it may be made against. But, where the decree or order has been
passed jointly against more persons than one, the application, if made against any one or more of them or against his or their representatives shall
take effect against them all.
The earlier part of the explanation need not be considered. It is however seen that where a decree or order has been passed in jointly in favour
of more persons than one, any application made in accordance with law to the proper court as a step-in-aid of execution of the decree, if made by
any one or more of the joint decree-holders or by his or their representatives, shall take effect in favour of them all.
This portion of Explanation 1 to Art. 182 is apparently urged in favour of the respondent. I have already referred to the scope of the order made
in the execution application filed by Lakshmanan Chettiar which was disposed of on 1st December 1954. No doubt, the court, while recognising
the entitlement of Lakshmanan Chettiar to execute the decree to the extent of one fourth made an observation that petitioners 2 to 6 were entitled
to execute the decree to a half share. But no reference has been made to the right of Manickam Chettiar. In my view, the casual observation that
petitioners 2 to 6 who were the heirs of Valliappa Chettiar were entitled to execute the decree to a half share, cannot divest the rights of a joint
decree-holder to treat that application by a co-decree-holder or as a step in aid of execution. The words used in the explanation are that such an
application ""shall take effect in favour of them all"". This should not be interpreted to mean that by such a recognition, a joint decree has become a
severable decree. This should be read in conjunction with clause 5 of the Article which provides for some step in aid of execution and for keeping
alive the decree for a further period of three years from the date of the final order on such an application which is in the nature of a step in aid of
execution. This ought not to be overlooked while interpreting the excerpt in Explanation 1 reproduced above and which is the bone of contention
of the respondent in this appeal. In Manchand Panachand v. Kesari 34 Bom 672, while considering a similar Article under Act XV of 1877 the,
Bombay High Court took the view that an application made by a representative of one of the joint decree-holders takes effect in favour of all. In
fact in that case the learned Chief Justice held that though the elder decree-holder had attained majority, the applications made by the guardian as
the next friend of the minor decree-holders took effect in favour of both. A Bench of our court in Venkata Reddaya v. Yarkayya 45 Mad 35, went
to the extent of laying down ""that an application for execution by a transferee of a part of a decree keeps, by virtue of C1.5 of Art. 182 of the
Limitation Act, the decree alive so as to enable the transferor to further execute the decree. Explanation 1 to that Article does not apply to a case
where a decree originally passed in favour of one person had afterwards come to be owned by more persons than one in severalty "".
In the light of the discussion as above, it appears to me that every time a joint decree-holder makes an application which is in the nature of a
stop in aid of execution, such an act would enure to the benefit of the other joint decree-holders for all purposes. This position cannot be altered by
a mere casual observation of a court which recognises also the right of a joint decree-holder to execute the decree in part, in an application by a
co-decree-holder to execute a part of the decree in his favour. The position seems to be unassailable and the learned Subordinate Judge therefore
erred in having concluded that what was originally a joint decree became transformed into one of severalty and since the appellant did not file the
execution petition within three years from 1st December 1954, his petition in 1960 to execute the part of the decree in his favour was barred by
limitation. On the principles laid down above, the appellant is entitled to rely open the order of transmission obtained by Manickam Chettiar on
22nd November 1957, which under Clause 5 of Art. 182 should be deemed to be a step in aid of execution and which can be availed of by the
appellant as well. The appellant filed an execution application for recognition and transfer within three years from that date and an order was
passed on 21 August 1959 in his favour. As he could not pursue the application, he filed a second application in 1960 which was also allowed.
The present execution petition was filed on 10th Dec. 1960, which is otherwise in order and is the light of my decision as above is executable. The
order of the lower appellate court is therefore set aside and the execution petition No. 646 of 1960 on the file of the District Munsee court,
Dharapuram, has to be restored and the execution, proceeded with. This civil miscellaneous second appeal is allowed with costs, Leave granted.