AI Structured Summary
Not yet generated for this judgment
Judgment
The question involved in these analogous appeals turns on the construction of Order XXI, Rule 16 of the C.P.C. The facts are these. One Fazlur, Rahman instituted certain proceedings under the provisions of Section 69 of the Bengal Tenancy Act and obtained decrees as against the tenants. It appears that the land in respect of which these decrees had been ; obtained passed into the possession of Musammat Kokila, who appears to have got a decree against Fazlur Rahman in the Civil Court. Musammat Kokila now claims to execute the decrees obtained by Fazlur Rahman and she contends that her right to execute the decrees is conceded to her by Order XXI, Rule 16 of the Code which runs as follows:
Where a decree or, if a decree has been passed jointly in favour of two or more persons, the interest of any decree-holder in the decree is transferred by assignment in writing or by operation of law, the transferee may apply for execution of the decree to the Court which passed it; and the decree may be executed in the same manner and subject to the same conditions as if the. application were made by such decree-holder:
Provided that, where the decree, or such interest as aforesaid, has been transferred by assignment, notice of such application shall be given to the transferor and the judgment-debtor, and the decree shall not be executed until the Court has heard their objections (if any) to its execution:
Provided also that, where a decree for the payment of money against two or more persons has been transferred to one of them, it shall not be executed against the others.
There is a proviso which it is unnecessary for me to consider.
The learned Advocate appearing on behalf of the respondents concedes that there is no transfer or assignment in writing in this case; but he contends that there is a transfer by operation of law. I am wholly unable to accept this contention. Musammat Kokila is in no sense the representative-in-interest of Fazlur Rahman. She claimed as against Fazlur Rahman and obtained a decree as against Fazlur Rahman. It is difficult to understand how it can be said that because she has obtained a decree in respect of the disputed land against Fazlur Rahman, therefore, it must be held that there is a transfer by operation of law of the decrees u/s 69 which had been obtained by Fazlur Rahman as against the tenants.
The decision of the lower Appellate Court is, in my opinion, erroneous. I would allow these appeals, set aside the orders passed by the Courts below and dismiss the application of Musammat Kokila. The respondents must pay the costs of these proceedings in all the Courts. There will be a consolidated hearing-fee of six gold mohurs.