Sheo Prasad Singh vs P.E. Lall

Kulwant Sahay, J.

[His Lordship discussed facts and held on the evidence that Rs. 6,200 and odd out of the consideration had not been paid. Then His Lordship went on as follows:--]

The question then arises as to whether the non-payment of a part of the consideration money would debar the assignee from executing the decree. It has been contended by Mr. Manohar Lal that the transfer was complete on the execution and registration of the deed and that if any sum was due to the transferor on account of the consideration money his remedy lies by a regular suit and that he could not object to the transferee executing the decree. Now this would depend on the intention of the parties. If it was intended that the title should pass on execution and registration of the deed even if a portion of the consideration had not been paid, then no doubt the assignee is entitled to execute the decree; but, on the other hand, if the intention of the parties was that the title should pass only after payment of the full amount of the consideration money, then the assignee is not entitled to execute the decree so long as the balance of the consideration money is not paid. Upon the evidence and the circumstances of the case I am clearly of opinion that the intention of the parties was that title should not pass until the entire amount of the consideration had been paid.

[After discussing evidence His Lordship observed:--]

The authorities are conclusive on the point that the question is one of intention and has to be decided upon the evidence in each case.

The next point raised is that the assignee is not a benamidar for Idal Singh and Govind Prashad Singh. It is unnecessary to decide this point because it is conceded before us that even as such benamidar he is entitled to execute the decree.

As regards the direction of the learned Subordinate Judge that the assignee can be only allowed to execute the decree subject to such equities as the original mortgagor judgment-debtors may have against the transferee judgment debtors, I am clearly of opinion that such a direction is not warranted by law. Section 49 of the CPC provides that every transferee of a decree shall hold the same subject to the equities, if any which the judgment-debtor might have enforced against the original decree-holder and, therefore, in the present case, all that the mortgagor judgment-debtor can insist upon is that whatever equities he had against Mr. P. Lall shall still be enforced against the transferee; but he cannot insist that whatever equities the mortgagor judgment-debtor may have against the mortgagee or purchaser judgment-debtor can be enforced against the purchaser of the decree. We are not in a position to say what these equities are. It is conceded by Mr. C.C. Das who appears for the objecting judgment-debtor, that the decree must be executed as it stands and the properties sold according to the directions contained in the decree.

Lastly, it has been contended that the objection as regards non-payment of a part of the consideration money and as regards the transferee being a benamidar for some of the judgment-debtors cannot be raised in the present proceedings. I see nothing in law to prevent these matters being raised in the present proceedings. Order 21, Rule 16, provides that the decree shall not be executed at the instance of the transferee without notice of the application being given to the transferor and the judgment-debtor, and the object of such notice is to enable the transferor and the judgment-debtor to raise such objections as regards the assignment as may be available to them. The question whether title passed under the assignment is clearly a question which can be taken by the assignor as well as the judgment-debtor. Reliance has been placed upon the provisions of Section 47 of the Code and it has been contended that only such questions can be allowed to be raised as may arise between the parties to the suit or their representatives and relating to the execution, discharge or satisfaction of the decree; and it has been argued that the question raised here is not between the parties to the suit but between one of the parties and his transferee. This may be so as between the transferor and the transferee; but the transferee is clearly a representative of the decree-holder and as such the question can be raised as between him and the judgment-debtor.

I am therefore of opinion that the appellant cannot be allowed to execute the decree so long as he does not pay the balance of the consideration money to the original decree-holder. Subject to the variations in the order of the Subordinate Judge as regards the right of the judgment-debtor to enforce any equities which he may have as observed above, the order of the learned Subordinate Judge must stand. The appeal must be dismissed with costs.

Ross, J.

I agree.