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PETITIONER: JUGALKISHORE SARAF

       Vs.

RESPONDENT: RAW COTTON CO.  LTD.

DATE OF JUDGMENT: 07/03/1955

BENCH: DAS, SUDHI RANJAN BENCH: DAS, SUDHI RANJAN BHAGWATI, NATWARLAL H. IMAM, SYED JAFFER

CITATION:  1955 AIR  376            1955 SCR  (1)1369

ACT: Code of Civil Procedure (Act V of 1908), s. 146, Order  XXI, rule  16-Debt transferred pending suit  thereon-Decree  not. mentioned   in  deed-Execution  of   decree-Application   by transferee-Applicability  of Order XXI, rule 16 and s.  146- Equitable principles Transfer of Property Act (IV of  1882), ss. 3, 5, 8 and 130.

HEADNOTE: H  &  S filed a suit against the appellant for  recovery  of money  and  during the pendency of the suit a  document  was executed   on  the  7th  February,  1949,  whereby  H  &   S transferred to the respondents all -book and other debts due to  them together with all securities for the debts and  all other  property  to which they were entitled  in  connection with  their business in Bombay.  One of the book  debts  was the subject matter of the suit, but there was no mention  in that document of the suit or the decree to be passed in  the suit.   The respondents did not take any steps  under  Order XXII,  rule  10,  of  the Code of  Civil  Procedure  to  get themselves substituted as plaintiffs in the place of H &  S, but  allowed  the suit to be continued in the  name  of  the original  plaintiffs,  and  on the 15th  December,  1949,  a decree was passed in favour of H & S against the  appellant. On  the 25th April, 1951, the respondents filed in the  City Civil  Court,  Bombay, an application for execution  of  the decree  under Order XXI, rule 11 of the Code, and  a  notice under  Order  XXI, rule 16 was issued by the  Court  calling upon  H & S and the appellant to show cause why  the  decree should not be executed by the transferees, the  respondents. The  appellant contended inter alia that as the  respondents were  only the assignees of the debt which was the  subject: matter  of the suit and not of the decree itself  they  were not entitled to execute the decree. Held,  that the respondents as the transferees of  the  debt which  was the subject-matter of the suit were  entitled  to make  an  application  for execution  of  the  decree  under section  146  of  the Code of  Civil  Procedure  as  persons claiming under the decree-holder. The effect of the expression " save as otherwise provided in this Code" contained in section 146 is that a person  cannot

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make an application under section 146 if other provisions of the Code are applicable to it. Per  DAs  and IMAM JJ., BHAGWATI J.  dissenting.-Order  XXI, rule  16, by the first alternative, contemplates the  actual transfer by an assignment in writing of a decree after it is passed and while a transfer of or an agreement to transfer a decree that may be passed in future may, in equity,  entitle the  transferee  to  claim the beneficial  interest  in  the decree after it is passed, such 1370 equitable   transfer  does  not  render  the  transferee   a transferee of the decree by assignment in writing within the meaning of Order XXI,    rule 16. Per  DAS J.-The transfer in writing of a property  which  is the  subject-matter of a suit without in terms  transferring the  decree  passed  or to be passed in the  suit  does  not entitle the transferee to apply for execution of the  decree under  Order XXI, rule 16, as a transferee of the decree  by an assignment in writing. If  by  reason  of  any  provision  of  law,  statutory   or otherwise,  interest in property passes from one  person  to another, there is a transfer of the property by operation of law.   There  is  no warrant  for  confining  transfers  "by operation of law" to the three cases of death, devolution or succession  or to transfers by operation of  statutory  laws only.  If the document in question could be construed to  be a  transfer of or an agreement to transfer the decree to  be passed  in  future,  then on the  decree  being  passed,  by operation  of  equity,  the  respondents  would  become  the transferees  of  the decree by operation of law  within  the meaning of Order XXI, rule 16. Per  BHAGWATI J.-Section 5 of the Transfer of  Property  Act defines  a  "transfer of property" as an act  by  which  the transferor  conveys property in present or in future to  the transferee  or  transferees.  The words "in  present  or  in future"  qualify  the  word  "conveys"  and  not  the   word "property"  in the section.  A transfer of property that  is not  in existence operates as a contract to be performed  in the future which may be specifically enforced as soon as the property comes into existence.  It is only by the  operation of  this  equitable principle that as soon as  the  property comes  into  existence and is capable of  being  identified, equity  taking as done that which ought to be done,  fastens upon  the  property  and the contract to  assign  becomes  a complete  equitable  assignment.  There is  nothing  in  the provisions  of the Code of Civil Procedure or any other  law which  prevents the operation of this  equitable  principle, and  an  assignment in writing of a decree to be  passed  in future  would become a complete equitable assignment on  the decree being passed and would fall within the "assignment in writing" contemplated by Order XXI, rule 16 of the Code. A mere transfer of property as such does not by itself spell out  a transfer of a decree which has been passed or may  be passed  in respect of that property and it would require  an assignment  of  such  decree  in  order  to  effectuate  the transfer.   But  where the property is an  actionable  claim within  the  meaning of the definition in section 3  of  the Transfer  of Property Act and is transferred by means of  an instrument  in  writing, the transferee could by  virtue  of section  130 of the Transfer of Property Act step  into  the shoes  of the transferor and claim to be the  transferee  of the decree and apply for execution of the decree under Order XXI, rule 16 of the Code of Civil Procedure. Per  IMAM  J.-There must be a decree in existence  which  is transferred  before  the  transferee can  benefit  from  the

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provisions                             1371 of  rule 16.  The ordinary and natural meaning of the  words of  rule  16  can  carry no  other  interpretation  and  the question  of  a  strict and  narrow  interpretation  of  its provisions does not arise. Case-law reviewed.

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 212 of 1954. Appeal  from the Judgment and Decree dated the 10th  day  of November  1953 of the High Court of Judicature at Bombay  in Appeal  No. 8 of 1953 under the Letters Patent, against  the decree dated the 23rd day of September 1952 of the said High Court in Appeal No. 67 of 1952 from Original Decree  arising out of Order dated the 20th November 1951 of the City  Civil Court, Bombay, in Summary Suit No. 233 of 1948. R.Subramania Iyer and K. R. Choudhry, for the appellant. H.J. Umrigar, J. B. Dadachanji and Rajinder Narain, for  the respondent. 1955.  March 7. The following Judgments were delivered. DAS  J.-The  facts  leading up to this appeal  are  few  and simple.  Two persons named Mahomedali Habib and  Sakerkhanoo Mahomedali Habib used to carry on business as merchants  and pucca adatias in bullion and cotton at Bombay under the name and  style of Habib & Sons.  In 1948 that firm instituted  a suit  in the Bombay City Civil Court, being Summary Suit  No 233  of  1948, against the present  appellant  Juga-lkishore Saraf,  a Hindu inhabitant carrying on business  at  Bombay, for  the  recovery of Rs. 7,113-7-0 with interest at  6  per cent. per annum said to be due by him to the firm in respect of  certain transactions in gold and silver effected by  the firm as pucca adatias.  On the 7th February,. 1949 when that summary  suit  was  still pending a  document  was  executed whereby  it was agreed that the two partners would  transfer and Messrs Raw Cotton Company, Limited, (hereinafter  called the respondent company) 1372 would accept the transfer of, inter alia, all book and other debts  due  to  them in connection with  their  business  in Bombay and full benefit of all securities for the debts  and all other property to which they were entitled in connection with the said business.  The respondent company did not take steps under 0. XXII, r. 10 of the Code of Civil Procedure to get  themselves substituted as plaintiffs in the  place  and stead of Habib & Sons, the plaintiffs on record, but allowed the  suit  to  be  continued in the  name  of  the  original plaintiffs.  Evidently, the two partners migrated from India to Pakistan and their properties vested in the Custodian  of Evacuee  Property.  On the 15th December 1949 a  decree  was passed in the summary suit for the sum of Rs. 8,018-7-0  for the  debt and interest and the sum of Rs. 410 for  costs  of the  suit,  aggregating to Rs. 8,428-7-0,  and  for  further interest  at  4  per cent. per annum from the  date  of  the decree until payment.  Habib & Sons being the plaintiffs  on record the decree was passed in their favour. On the 11th December 1950 the Custodian of Evacuee Property, Bombay,  informed  the respondent company that by  an  order made  on  the 2nd August 1950 the  Additional  Custodian  of Evacuee Property had confirmed "the transaction of transfer" of the business of Habib & Sons to the respondent company. On  or  about the 25th April, 1951  the  respondent  company presented  before  the  Bombay City Civil  Court  a  tabular

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statement  purporting  to be an  application  for  execution under Order XXI,rule 11 of the Code of Civil Procedure.   In the last column of the tabular statement, under the  heading "The mode in which the assistance of the Court is required", the respondent company prayed that the Court "be pleased  to declare  the Applicants the assignees of the decree  as  the decrement  debt along with other debts bad been  transferred by the plaintiffs to the Applicants by a deed of  assignment dated  the  7th  February 1949 which was  confirmed  by  the Custodian of Evacuee Property, Bombay, and order them to  be substituted for the plaintiffs".  There was, in that column, no specification of any of the modes in which the assist- 1373 ance  of  the  Court  might  be  required  as  indicated  in clause(j)of  Order XXI,rule 11 of the Code.On the  10th  May 1951 the Bombay City Civil Court issued a notice under Order XXI,  rule  16  of the Code to Habib & Sons,  who  were  the decree-holders  on record, and Jugalkishore Saraf,  who  was the defendant judgment-debtor, requiring them to show  cause why the decree passed in the suit on the 15th December  1949 in  favour of the plaintiffs and by them transferred to  the respondent  company,  should  not be executed  by  the  said transferees against the said defendant judgment-debtor.  The defendant   judgment-debtor  showed  cause  by   filing   an affidavit  affirmed by him on the 15th June  1951.   Amongst other  things, he denied that the document in  question  had been executed or that the document transferred the decree to the respondent company. The  matter was tried on evidence and the execution  of  the document was proved by the evidence of an attesting  witness which  has  been  accepted  by  the  executing  Court.   The executing Court, however, rejected the second contention and made  the notice absolute with costs and gave leave  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  execution of the document was not  challenged  and nothing further need be said about that.  The only  substan- tial question raised wag whether the respondent company were the  transferees of the decree within the meaning  of  Order XXI,  rule 16.  The learned Judge answered the  question  in the  affirmative  on the authority of the decisions  of  the Bombay  High  Court in Purmananddas  Jivandas  v.  Vallabdas Wallji(1) and in Chimanlal Hargovinddas v. Ghulamnabi(2) and affirming  the  order of the executing Court  dismissed  the appeal.   The  judgment-debtor preferred  a  Letters  Patent Appeal before the High Court which was dismissed by  Chagla, C.J.,  and  Shah, J., following the  two  earlier  decisions mentioned above.  They, however, (1)  [1877] I.L.R. 11 Bom. 506. (2)  I.L.R. [1946] Bom. 276. 1374 granted,  under article 133 (1) (c) of the  Constitution,  a certificate  of fitness for appeal to this  Court.       The principal  question  urged before us is as  to  whether  the respondent  company can claim to be the transferees  of  the decree within the meaning of Order XXI, rule 16 of the  Code of Civil Procedure. Order XXI, rule 16 of the Code of Civil Procedure,  omitting the local amendments which are not material for our  present purpose, provides:- "16.  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

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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 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". The  first thing that strikes the reader is the sequence  of events  contemplated  by this rule.  It  postulates,  first, that a decree has been passed and, secondly, that decree has been  transferred  (i) by assignment in writing or  (ii)  by operation  of  law.  The cardinal rule  of  construction  of statutes is to read the statute literally, that is by giving to the words used by the legislature their ordinary, natural and grammatical meaning.  If, however, such a reading  leads to  absurdity  and  the words  are  susceptible  of  another meaning  the  Court  may adopt the same.  But  if  no  ,such alternative  construction is possible, the Court must  adopt the ordinary rule of literal interpretation.  In the present case a literal construction of the rule                             1375 leads to no apparent absurdity and, therefore, there can  be no compelling reason for departing from that golden rule  of construction.   It is quite plain that if  .Order  XXI, rule 16 is thus construed the respondent company cannot  possibly contend  that the decree now sought to be executed  by  them was, after its passing, transferred to them by an assignment in writing within the meaning of that rule, for the document in  question was executed on the 7th February 1949  but  the decree  was passed subsequently on the 15th  December  1949. Whether they can claim to have become the transferees of the decree  after it was passed by operation of law  within  the meaning of this rule or to have otherwise become entitled to the  benefit  of  it is a different  matter  which  will  be considered  later  on.  For the moment it is enough  to  say that  there  had  been  no transfer of  the  decree  to  the respondent  company  by any assignment in  writing  executed after the decree was passed, as contemplated and required by Order XXI, rule 16.  Indeed, Dixit, J., conceded- "If  the  language  of  Order  XXI,  rule  16  is   strictly construed,  it  seems  to me that the  Respondents  have  no case". And so did chagla , C,J.; when he said;     "........ and it is perfectly clear that if one were  to construe  rule  16 strictly there is no  assignment  of  the decree in favour of the first respondent". The learned Chief Justice, like Dixit, J., however, departed from the rule of strict or literal construction as they felt pressed  by  the  fact  that  the  Bombay  High  Court   had consistently taken the view that there might be an equitable assignment  of a decree which would constitute the  assignee an  assignee  for the purpose of rule 16 and that  what  the Court  must  consider is not merely a legal  assignment  but also an assignment which operates in equity.  The  equitable principle  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, 210, 211. 176 1376 "It  is  quite true that a deed which  professes  to  convey

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property  which  is  not in existence at the time  is  as  a conveyance  void at law, simply because there is nothing  to convey.   So in equity a contract which engages to  transfer property,  which is not in existence, cannot operate  as  an immediate  alienation  merely because there  is  nothing  to transfer. But  if  a vendor or mortgagor agrees to  sell  or  mortgage property, real or personal, of which he is not possessed  at the  time,  and  he  receives  the  consideration  for   the contract,  and  afterwards  becomes  possessed  of  property answering the description in the contract, there is no doubt that  a  Court  of Equity would compel him  to  perform  the contract,  and that the contract would, in equity,  transfer the  beneficial  interest  to  the  mortgagee  or  purchaser immediately  on  the  property  being  acquired.   This,  of course,  assumes that the supposed contract is one  of  that class  of which a Court of Equity would decree the  specific performance". The  same principle was thus reaffirmed by Jessel, M.R.,  in Collyer v. Isaacs(1): "A man can contract to assign property which is to come into existence  in  the  future,  and  when  it  has  come   into 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". Applying  the above principles to the facts of  the  instant case  the  High  Court  -came to  the  conclusion  that  the document  of the 7th February, 1949, on a proper reading  of it, constituted an assignment of the decree.  The reasoning, shortly put, is: that on a true construction the document in question  amounted  to. a transfer of the  decree  that  was expected  to  be  passed in the pending suit,  that  as  the decree  was not in existence at the date of the document  it operated  as  an agreement to transfer the  decree  when  it would be passed, that such an agreement could be enforced by a suit for specific performance as indicated by the (1)  L.R. 19 Ch.  D. 312, 351.                             1377 Privy  Council in Raja Sahib Perhlad v. Budhoo(1),  that  as soon  as a decree was passed equity, treating as  done  what ought to be done, fastened upon the decree and the agreement for  transfer  became  the transfer of the  decree  and  the transferee  became  a transferee of the  decree  within  the meaning  of Order XXI, rule 16.  It is to be noted  that  to attract  the application of this equitable  principle  there must be an agreement to transfer the decree to be passed  in future.  As soon as the decree is passed equity fastens upon it  and, by treating as done what ought to be done, that  is by  assuming  that  the  transferor  has  executed  a   deed transferring  the  decree  to  the  transferee  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 considering only  implements  or effectuates the agreement of the parties.  This equity  does not,  however, take upon itself the task of making  any  new agreement  for the parties either by filling up the  lacunas or  gap  in their agreement or  otherwise.   If,  therefore, there  is no agreement between the parties to  transfer  the future decree the equitable principle referred to above can- not come into play at all.  In order, therefore, to test the propriety of the application of this equitable principle  to the  facts  of the present case we have to  enquire  whether there was here any agreement between the parties to transfer the  decree  to be passed in the then  pending  suit.   This necessarily leads us to scrutinize the terms of the document

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in question and ascertain its true meaning and import. No  point has been taken before us that the document of  the 7th  February 1949 is only an executory agreement and not  a deed of transfer.  Indeed, the argument has proceeded before us, as before the Court below, that the document in question is  a completed deed of transfer.  This relieves us  of  the task of closely examining the form of the document.  For our present  purpose we have, therefore, only to  consider  what properties were covered by the document.  The High Court has held that the decree to be 2(1) [1869] 12 M.I.A. 275; 2 B.L.R. 111. 1378 passed  was also included in this document.   The  reasoning appears  to be this: Clause 1 of the document comprised  six several  items of properties.  Each of these items  referred to "the said Indian business".  The Fourth item was "All the book  and other debts due to the vendors in connection  with the  said  Indian  business and the  full  benefits  of  all securities  for the debts" and the last and  residuary  item was "All other property to which the vendors are entitled in connection with the said Indian business".  One of the  book debts  was  the  subject-matter of the  pending  suit.   The decree that the plaintiff would obtain in, that suit  would, therefore, be property or right "in connection with the said Indian business".  Therefore, as they were transferring  all property  in connection with their business they  must  have intended to transfer the future decree also.  Therefore,  it must be regarded as covered by the document.  I am unable to accept this line of reasoning.  It cannot be overlooked that there was no mention in that document of any suit or  decree to be passed in that suit as one would have expected if  the parties really intended to transfer the future decree  also. In this connection it is significant that the residuary item covered  "All properties to which the vendors are  entitled" and not all properties to which they might in future  become entitled.   Reference may also be made to the provisions  of the  Transfer of Property Act.  Under section 8 of that  Act the  transfer of property passes to the transferee  all  the interest which the transferor is then capable of passing  in the property and in the legal incidents thereof, and if  the property transferred is a debt or actionable claim, also the securities  therefore.  It is urged that as  the  respondent company  thus  became entitled, by virtue of  this  document read  in  the  light of section 8, to  all  the  rights  and remedies  including the right to prosecute the pending  suit and to obtain a decree the decree that was eventually passed automatically  and  immediately upon its.  passing  must  be taken as having been transferred by this very  document.This argument appears to me to really amount to   a  begging   of the question,           The 1379 transfer  of  the  debt passed all the  interest  which  the transferors were then capable of passing in the debt and  in the  legal incidents thereof.  There was then no  decree  in existence  and,  therefore, the transferors could  not  then pass  any interest in the non-existing  decree.   Therefore, section  8 of the Transfer of Property Act does  not  assist the respondent company.  Upon the assignment of the debt the respondent  company  undoubtedly  became  entitled  to   get themselves   substituted  under  Order  XXII,  rule  10   as plaintiffs  in the pending suit but they did not  choose  to do, so and allowed the transferors to continue the suit  and a  decree to be passed in their favour.  The true  position, therefore,  is that at the date of the transfer of the  debt to the respondent company the transferors could not transfer

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the  decree,  because the decree did not exist.  On  a  true construction of the document the transferors agreed only  to transfer,  besides the five items of  specified  properties, "All  other properties to which the vendors  are  entitled", that  is to say, all properties to which at the date of  the document  they were entitled.  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 provision purporting  in terms  to  transfer  any future 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 transferor  can  then, i.e., at the date  of  the  transfer, pass.   There  was thus no agreement for transfer  and  much less  a transfer of a future decree by this  document.   All that  was  done by the transferors by that document  was  to transfer only the properties mentioned in clause 1  together with  all legal incidents and remedies.  The  properties  so transferred included book debts.  A book debt which was made the  subject-matter  of the pending suit did not,  for  that reason, cease to be a book debt and, therefore, it was  also transferred but no 1380 decree  to be passed in respect of that book debt was If  in terms transferred.  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- matter  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  transferee  to  apply  for execution of the decree as a transferee of the decree by  an assignment  in writing within the meaning of Order  XXI,  r. 16.   See  Hansraj Pal v. Mukhraj Kunwar(1)  and  Vithal  v. Mahadeva(2).  In my judgment the decree was not  transferred or agreed to be transferred to the respondent company by the document under consideration and the 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 transferred or  agreed to  be  transferred  by this document  and  therefore.,  the equitable  principle came into play and that as soon as  the decree   was  passed  the  respondent  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 Courts are not easily reconcilable, I consider  it right to record my views on that question. I shall., then, assume, for the purposes of this part of the argument,  that the document of the 7th February 1949 was  a completed deed of transfer covering 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 Bom.  L R. 333.

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1381 decree.  The question then arises: What is the effect of the operation  of the equitable principle on the decree  as  and when  it  is  passed?  Where there is  a  contract  for  the transfer  of property which is not in existence at the  date of  the  contract, the intending transferee  may,  when  the property  comes  into  existence, enforce  the  contract  by specific  performance, provided the contract is of the  kind which  is  specifically enforceable in equity.  It  is  only when the 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  that property passes from  him  to  the transferee.  This transfer of title is brought about not  by the prior agreement for transfer but by the subsequent  deed of transfer.  This process obviously involves delay, trouble and expenses.  To obviate these difficulties equity steps in again  to short circuit the process.  Treating as done  what ought  to  be  done,  that is  to  say,  assuming  that  the intending  transferor  has executed a deed  of  transfer  in favour  of  the intending transferee immediately  after  the property came into existence, equity fastens upon the after- acquired property and treats the beneficial interest therein as  transferred to the intending transferee.   The  question for consideration is: Is this transfer brought about by  the earlier  document  whereby the 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  property  had  been  transferred,   proporio vigore, by the earlier document?  Does that document operate as an assignment in writing within the meaning of Order XXI, rule  16?   Learned  counsel  for  the  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  Jivandas v. Vallabdas Wallji  (supra)  the facts  were  these.   In  May  1859  one  died  leaving  his properties  to  executors in trust for  the  appellant.   In August 1868 the executors filed a suit in the Original  Side of the Bombay High Court 1382 against  Luckmidas Khimji for recovery of money lent to  him as  manager  of Mahajan Wadi.  During the  pendency  of  the suit,  the executors on the 11th May 1870 assigned  in  very wide and general terms all the properties of the testator to the appellant including "all movable property, debts  claims and  things  in  action whatsoever vested in  them  as  such executors".  The appellant was not brought on the record but the  suit  proceeded in the name of the executors.   On  the 23rd January 1873 a decree was passed for the plaintiffs  on the  record, i.e. the executors, for Rs. 31, 272-13-5  which was  made  a  first  charge on  the  Wadi  properties.   The appellant  thereupon  applied for execution  of  the  decree under section 232 of the Code of 1882 (corresponding to  our Order  XXI,  rule  16), as transferee of  the  decree.   The Chamber Judge dismissed the application.  On appeal Sargent, C. J., and Bayley, J., held that the appellant was competent to  maintain the application.  After pointing out  that  the ssignment was in the most general terms, Sargent, C.   J., observed:- "........................ 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  the  Civil  Procedure  Code,

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because  the  decree  has not been transferred  to  him  "by assignment  in  writing or by operation of law",  and  that, therefore, he is not entitled to apply for execution.  There is no doubt that in a Court of equity, in England the decree would be regarded as assigned to Purmananddas, and he  would be  allowed  to  proceed in execution in  the  name  of  the assignors.   Here there is no distinction between "law"  and "equity",  and by the expression ’by operation of law’  must be understood the operation of law as administered in  these Courts.  We think under the circumstances that we must  hold that  this decree has been transferred to  Purmananddas  ’by operation of law’ The  last  sentence  in the  above  quotation,  standing  by itself, quite clearly indicates that the learned                             1383 -Chief  Justice was of the view that as the benefit  of  the decree became available to the appellant by operation of the equitable  principle it had to be held that the  decree  had been  transferred  to the appellant "by  operation  of  law" rather  than by an assignment in writing and that is how  it was  understood  by the reporter who framed  the  head-note. The  learned Chief Justice, however, immediately after  that last sentence added:- "In  the present case the decree has been transferred by  an assignment in writing as construed in these Courts". This  sentence  prima  facie  appears  to  be  somewhat  in- consistent  with the sentence immediately preceding  and  it has  given rise to a good deal of comments in  later  cases. The  learned Chief Justice has not referred to any  case  in which the Bombay High Court had adopted such a construction. The  case  of Ananda Mohon Roy v. Promotha  Nath  Ganguli(1) follows   the   decision  of  the  Bombay  High   Court   in Purmananddas  Jivandas  v. Vatllabdas  Wallji  (supra).   It should  be  noted, however, that in this Calcutta  case  the decree  was obtained and the transfer was made on  the  same day  and it was held that though there was no assignment  of the decree in so many words the property with all arrears of rent  having been assigned to the  mortgagee  simultaneously with  the  passing of the decree the assignment  passed  the decree also. The case of Chimanlal Hargovinddas v. Ghulamnabi (supra) has been strongly relied upon.  In that case a shop was held  by A  and B as tenants-incommon.  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 disputes  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 entitled to  a  half share.  A then, on the 7th March, 1939, sold all his  rights under the award (which was (1)  [1920] 25 C.W.N. 863; A.I.R. 1921 Cal. 74, 177 1384 called a decree) to C by a registered deed.  C did not apply for substitution of his name on the record 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.  It 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.  In this case, having regard to  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 the award  and the decree upon it had been transferred.  It  was

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quite clearly recognised by 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. Reading the three cases relied on by learned counsel for the respondent company it seems to me that they 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 an assignment in  writing  of  that decree as soon as it was passed.  Some support is sought  to be derived by 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  contract  to assign   thus  becomes  a  complete  assignment".   I   find considerable difficulty in accepting this argument as sound. In the first place the Lord Chancellor and the Master of the Rolls were not concerned with the question of relation  back in  the form in which it has arisen before us.  In the  next place it must not be overlooked that the equitable principle herein alluded to is not a rule of construction of documents but  is a substantive rule which confers the benefit of  the after-acquired property on the person to whom the transferor had, by his agreement, promised to transfer the same.  Thus, by treating as done that 1385 which  ought  to  be done, equity  fastens  upon  the  after acquired  property and brings about a transfer of  it.   The implication  of this principle, to my mind, is clearly  that the  agreement,  by  itself and proprio,  vigore,  does  not transfer  the property when it is subsequently acquired  but that  instead  of putting the intending  transferee  to  the trouble  and expense of going to Court for getting a  decree for specific performance directing the promisor to execute a deed  of  transfer  which when executed  will  transfer  the afteracquired  property,  equity intervenes and  places  the parties in a position relative to each other in which by the prior agreement they were intended to be placed as if a deed of transfer had been made.  As I apprehend the position,  it is  by  the  operation of equity on  the  subsequent  event, namely, the actual acquisition of the property on its coming into  existence  that  the beneficial  interest  therein  is transferred to the 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 sots the  equity  in  motion  but, nevertheless,   it  is  equity  alone  which   denudes   the transferor  of his interest in the  after-acquired  property and  passes it to the intending transferee.  That being  the true position, as I think it is, the after acquired property cannot,  logically  and on principle, be said to  have  been transferred to the intending transferee by the agreement  in writing.   I do not see on what principle this transfer  can be  said  to relate 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  publishers, being  members  of  the plaintiff society,  assigned  by  an indenture of assignment to the society the performing  right of  every song, the right of performance of which they  then possessed  or should thereafter acquire, to be held  by  the society  for  the  period  of  the  assignor’s   membership. Subsequently, a certain

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(1)  L.R. [1924] A.C. 1. 1386 song was written, and the copyright in it, together with the right of performance, was assigned by the author to the said firm,  but there was no fresh assignment in writing  by  the firm  to  the  plaintiff society such  as  was  required  by section  5(2) of the Copyright Act, 1911.   The  defendants, who  were music hall proprietors, permitted this song to  be publicly sung in their music hall without the consent of the plaintiff  society.   The plaintiff society  then  sued  the defendants  for infringement of their performing rights  and claimed  a  perpetual injunction.  The defence was  that  as there  was  no  assignment  in  writing  of  the   copyright subsequently  acquired by the firm to the plaintiff  society the  latter was not the legal owner and, therefore, was  not entitled  to a perpetual injunction.  Discussing the  nature of  the  right acquired by the plaintiff society  under  the indenture  of  1916  and its  claim  to  the  after-acquired copyright  secured by the firm and referring to  section  5, sub-section  (2) of the Copyright Act, 1911, Viscount  Cave, L.C., observed at p. 13:- "There was on the respective dates of the instruments  under which  the  appellants claim no existing  copyright  in  the songs in question, and therefore no owner of any such right; and this being so, neither of those instruments can be  held to have been an assignment "signed by the owner of the right within  the 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 its acquisition passes  in equity to 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 instrument 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 in that  sense are equitable owners of those rights;  but  they are  not assignees of the rights within the meaning  of  the statute.  This contention, therefore, fails", 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 plaintiff  assigned the decree to be passed in  the  pending suit.   The  assignee was not brought on  the  record  under section  372 of the 1882 Code corresponding 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 then applied for execution of that 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  the appellant is entitled to be treated  as  the transferee of a decree from a decree holder for the purposes of  section  332, notwithstanding that at the  time  of  the assignment.  there was no decree and no  decree-holder.   It seems to us that we should not be warranted in applying  the doctrine  of equity on which the appellant relies, which  is

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stated in Palaniappa v. Lakshmanan, I.L.R. 16 Mad. 429,  for the purpose of construing section 232 of the Code.  We think the  words  "decree-holder"  must be  construed  as  meaning decree-holder  in fact and not as including a party  who  in equity  may afterwards become 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". It  is  true  that  the case  of  Purmananddas  Jivandas  v. Vallabdas Wallji (supra) was not cited in that case but  the case of Palaniappa v. Lakshmanan() which (1) [1907] 17 M.L.J. 391, (2) [1898] I.L.R. 16  Mad. 429. 1388 adopted the equitable principle enunciated by Jessel,  M.R., in  Collyer v. Isaacs (supra) on which that Bombay case  bad been founded was brought to the notice of the Court. In Dost Muhammad v. Altaf HUsain Khan(1) one M instituted  a suit  for recovery of some immovable property.   During  the pendency  of  the  suit M transferred his  interest  in  the property to the respondent.  The respondent did not apply to bring himself on the 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 the  transferee of the decree.  The Munsiff rejected the application but the District  Judge  reversed  his  order.   On  second   appeal Chamier, J., found it impossible to treat the respondent  as the  transferee of the decree, for the document on which  he relied was executed before the decree was passed. Peer  Mahomed  Rowthen v. Raruthan Ambalam(2)  may  also  be referred  to.  In that case the Madras High  Court  followed its earlier decision in Basroovittil Bhandari v.  Ramchandra Kamthi (supra). The case of Thakuri Gope V. Mokhtar Ahmad(3) does not  carry the  matter  any  further, for it  only  follows  the  three earlier cases herein before mentioned. Mathurapore   Zamindary  Co.  Ltd.  v.  Bhasaram   Mandal(4) represents  the view taken by the Calcutta High  Court.   In that  case Hennessey and his brothers, who  were  Zamindars, instituted rent suits against their tenants.  Pending  those suits  Hennessey and his brothers transferred the  Zamindari to the appellant company.  The appellant company did not get themselves 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  appellant  company  then applied  for execution.  The executing Court and  the  lower appellate Court held that (1) [1912] 17 I.C. 512.         (2) [1915] 30 I.C. 831. (3)[1922] C.W.N. (Patna) 256; A.I R. 1922 Pat. 563. (4) [1924] I.L.R. 51 Cal. 703. 1389 the  appellant company was not a transferee of  the  decree. The  appellant  company  thereupon  preferred,  this  second appeal  to  the High Court. it was held that  the  appellant company  could not apply under Order XXI, rule 16, for  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 holder" could not cover a party who, in equity, might  afterwards have become entitled to the rights of  the actual  decree  holder.   The case of Ananda  Mohon  Roy  v. Promotha  Nath Ganguli (supra) was explained as being  based really on the construction that was put upon the conveyance,

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namely,  that  it  covered a decree which  had  been  passed "simultaneously  with, if not before, the execution  of  the conveyance".   After  pointing  out  that  in   Purmananddas Jivandas  v.  Vallabdas Wallji (supra)  the  transferor  and transferee  stood in the position of trustee and cestui  que trust  and that that circumstance might have  attracted  the application  of the equitable principle the Court could  not assent  to the broad proposition supposed to have been  laid down  in  that case that the transferee in equity  became  a transferee  of  the decree by the prior agreement so  as  to come  under Order XXI, rule 16 and preferred to  follow  the decision  of the Madras High Court in Basroovittil  Bhandari v.  Ramchandra  Kamthi (supra) and the  other  decisions  to which reference has been already made. In  Pandu  Joti Kadam v. Savla Piraji Kate(1)  one  Tuljaram obtained a decree on a mortgage against the appellant  Pandu Joti.  Later on, the respondent Savla brought a suit against the appellant Pandu and Tuljaram.  In that suit a decree was passed  directing Tuljaram to transfer the mortgage  decree’ to  Savla.   The respondent Savla thereupon  without  having obtained, amicably or by execution of his decree, an  actual assignment  of  the mortgage decree sought to  execute  that decree.  It was held that although Savla had a legal  right, by  executing his own decree, to compel his  judgment-debtor Tuljaram  to assign to him the mortgage decree  obtained  by Tuljaram, such (1)  [1925] 27 Bom.  L.R. 1109. 1390 right alone, without an assignment in writing, did not  make him a transferee of the mortgage decree so as to be entitled to execute that decree. Even  the Bombay High-Court (Fawcett and Madgavkar, JJ.)  in Genaram   Kapurchand  Marwadi  v.   Hanmantram   Surajmal(1) followed   the  decision  of  the  Madras  High   Court   in Basroovittil  Bhandari  v. Ramchandra Kamthi  (supra).   The question came up for consideration in connection with a plea of  limitation.   There  in  February  1914  the   appellant obtained  an assignment of the rights of the plaintiff in  a pending suit which was thereafter continued by the  original plaintiff.   In November 1914 a decree was passed in  favour of  the  original  plaintiff.  The  appellant  made  several applications for execution of the decree in 1916, 1917, 1920 and 1921 all of which were dismissed.  In November 1923  the appellant  obtained a, fresh assignment in writing from  the plaintiff  and made a fresh application for execution.   The judgment-debtor  pleaded that the earlier applications  were not  in  accordance  with law and did not  keep  the  decree alive.   It  was  held  that  although  the  appellant   was entitled,  in  equity, to the benefit of the decree  he  did not, before he actually obtained an assignment of the decree in 1923, become a transferee of the decree by an  assignment in  writing  within Order XXI, rule 16 and,  therefore,  the applications  made  by him prior to 1923 were  not  made  in accordance with law and, therefore, the last application was barred  by limitation.  This decision clearly  proceeded  on the  ground  that Order XXI, rule 16 contemplated  only  the transfer of a decree after it had been passed. The  case of Abdul Kader v. Daw Yin(2) does not ,assist  the respondent company, for in that case the Court took the view that, on its true construction, the deed under consideration in  that  case  actually transferred  the  decree  that  bad already been passed. In  Prabashinee Debi v. Rasiklal Banerji(3),  Rankin,  C.J., considered the previous cases and preferred to (1)  A.I.R. 1926 Bom. 406; 28 Bom.  L.R, 776.

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(2)  A.I.R. 1920 Rang. 308. (3)  [1931] I.L.R. 59 Cal. 297. 1391 follow  the  case  of  Mathurapore  Zamindary  Co.  Ltd.  v. Bhasaram Mandal (supra). The  case of Purna Chandra Bhowmik v. Barna  Kumari  Debi(1) does  not, when properly understood, afford any  support  to the  contention  of  the  respondent  company.   There   the defendant  No. 1 had executed a mortgage bond in  favour  of the  plaintiff assigning by way of security the decree  that would  be passed in a pending suit which he,  the  defendant No.  I 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 of  the defendant  No.  1  who  bad  continued  that  suit  as   the plaintiff.  The plaintiff claiming to be the assignee by way of mortgage of that decree instituted this suit  against two defendants.   The defendant No. 1 was the plaintiff  in  the earlier  suit who had 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 the  first defendant.  The judgment-debtor under the  decree in  the  first suit was not made a party defendant  in  this suit.  The first defendant did not contest this suit and  it was  only  contested by the second defendant.   One  of  the points  raised  by the contesting 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  the plaintiff did not pray  for  consequential relief  in the shape of a permanent  injunction  restraining him,  the contesting defendant, from executing  the  decree. In   repelling   that  argument  as   manifestly   untenable Mukherjea, J., as he then was, said:- "All  that the plaintiff could want possibly at the  present stage  was  a declaration that she was an  assignee  of  the decree and if she gets a 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.  No other  consequential relief by way of (1)  I.L.R. [1939] 2 Cal. 341. 178 178 1392 injunction or otherwise could or should have been prayed for by the plaintiff in the 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 of the decree  and the judgment-debtor.  Indeed, the judgment-debtor was not  a party  to this suit at all. The simple question was  whether the suit was maintainable under section 42 by reason of  the absence  of a prayer for consequential relief.  In  view  of the facts of that case the observation quoted above  appears to me to be a passing one not necessary for the decision  of the question then before the Court and not an expression  of considered opinion on the meaning, scope and effect of Order XXI, rule 16. All  the cases, except the three cases relied on by  learned counsel for the respondent company, quite clearly lay  down- and I think correctly-that Order XXI, rule 16, by the  first alternative, contemplates the actual transfer of the  decree by  an  assignment in writing executed after the  decree  is passed  And  that  while a transfer of or  an  agreement  to transfer  a  decree  that may be passed in  future  may,  in equity,  entitle  the  intending  transferee  to  claim  the

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beneficial  interest in the decree after it is passed,  such equitable  transfer  does  not  relate  back  to  the  prior agreement and does not render the transferee a transferee of the  decree by an assignment in writing, within the  meaning of Order XXI, rule 16. Learned  counsel  for the respondent company  then  contends that even if the 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 in  writing,  they,  nevertheless, became  the transferees of the decree "by operation of  law" within  the meaning of Order XXI, rule 16.  That phrase  has been  considered  by the different High Courts  in  numerous cases  but  the interpretations put upon it are not  at  all uniform and it is difficult to reconcile all of them. 1393 In  this  judgment in the present case the  executing  court expressed the view that the phrase could only mean that  the rights  had  been transferred "on account of  devolution  of interest on death, etc".  In delivering the judgment in  the Letters Patent Appeal, Chagla, C.J., said:- "The operation of law contemplated by Order XXI, rule-16  is not  any equitable principle but operation by devolution  as in the case of death or insolvency". The  learned Chief Justice does not give any reason for  the view  expressed  by him but assumes the law to be  so.   The genesis  for  such assumption is probably traceable  to  the observations  of  Sir Robert P. Collier  who  delivered  the judgment  of  the Privy Council in  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 properties.  The trial Court dismissed the  suit and  Wahed appealed to the High Court.  During the  pendency of  the  appeal  Wahed died and his  widow  Abedoonissa  was substituted  in  the  place of  Wahed  for  prosecuting  the appeal.  The High Court allowed the appeal and by its decree declared that Wahed 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 Wajed 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 it was held that Abedoonissa was entitled  to  execute  the decree for  herself  and  as  the guardian  of Wajed.  Then the judgment-debtor  Abdool  died. Abdool’s  widow Ameeroonissa 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 question of the legitimacy of  Wajed was decided was wholly incompetent so far as (1)  [1876] L.R. 4 I.A. 66; I.L.R. 2 Cal. 327. 1394 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 in such proceeding was not binding at all.   The question  for decision in the suit was whether Wajed  was  a transferee  of the decree within the meaning of section  208 of  the  Code of 1859.  It was in that connection  that  Sir Robert  P. Collier in delivering the judgment of  the  Privy

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Council, after quoting that section, observed:- "It  appears to their Lordships, in the first place,  that,, assuming Wajed to have the interest asserted, 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 bad  occurred, on which the law could operate, to transfer any estate  from his mother to him.  There had been no death; there bad  been no  devolution;  there had been no succession.   His  mother retained what right she had; that right was not  transferred to  him; if he had a right, it was derived from his  father; it  appears to their Lordships, therefore, that be is not  a transferee of a decree within the terms of this section". The  above  observations  seem to put  upon  the  phrase  by operation  of law" an interpretation which, in the  language of  Chakravartti, J., in his judgment in Sailendra Kumar  v. Bank  of Calcutta(1) "suggests that it would apply  only  in cases  where certain events, not connected with any  act  on the  part of anybody towards making a transfer,  happen  and the   law,  operating  on  those  events,  brings  about   a transfer".  Some of the decisions of certain High Courts  to be  presently cited seem to assume that their  Lordships  of the Privy Council were out to give an exhaustive enumeration of the cases of transfer of property by operation of law but I find myself in agreement with Chakravartti, J., that there is no reason for making (1)  I.L.R. [1948] 1 Cal. 472. 1395 such  an assumption and treating these observations  as  the text of a statute. In  Dinendranath  Sannyal v. Ramcoomar Ghose(1)  Sir  Barnes Peacock pointed out the great distinction between a  private sale in satisfaction of a decree and a sale in execution  of a decree.  One of the principal distinctions so pointed  out was:- "Under  the former the purchaser derives title  through  the vendor,  and cannot acquire a better title than that of  the vendor.   Under the latter the purchaser notwithstanding  he acquires  merely  the  right,  title  and  interest  of  the judgment-debtor,  acquires  that title by operation  of  law adversely  to  the  judgment-debtor,  and  freed  from   all alienations or incumbrances effected by him subsequently  to this attachment 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  directing attachment  and  sale  cannot possibly be  said  to  be  the happening  of an event unconnected with the act of making  a transfer such as death or devolution or succession  referred to  in Abedoonissa’s case (supra) could be said to  be.   By the  act of applying for execution the  decree-holder  quite clearly desires that the judgment-debtor should be  stripped of  all  his  right,  title and  interest  in  the  property attached and sold and the order of the Court has the  effect of so denuding the judgment-debtor and of passing his right, title  and interest to the purchaser of the property at  the Court  sale.   This  transfer ’of property  is  not  by  any assignment  in writing executed by the transferor in  favour of  the transferee but is brought about by the operation  of the statutory-provisions relating to and governing execution of  decrees.  Thus this Privy Council decision itself  shows that transfers "by operation of law" were not intended by it to  be confined to the three cases of death,  devolution  or succession. More often than not transfers "by operation of law" will  be

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found to be brought about by the opera- (1)  [1889] L.R. 8 I.A. 65, 75. 1396 tion  of  statutory law.  Thus when a  person  dies  testate there  is  a  devolution  of his  properties  to  his  legal representatives  by  operation of the  law  of  testamentary succession  which is now mainly statutory in  this  country. When  a person is adjudged insolvent his properties vest  in the official assignee and that transfer is brought about  by the  operation  of  the  insolvency  laws  which  have  been codified.   Court sale of property in execution of a  decree vests  the right, title and interest of the  judgment-debtor in that property in the auction-purchaser thereby  effecting a  transfer by operation of the law embodied in the Code  of Civil  Procedure.  Likewise, statutes in some cases  provide for the forfeiture of property, e.g. property in relation to which an offence has been 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  to  try  and  enumerate exhaustively the instances of transfer by operation of  law. Suffice  it  to say that there is DO warrant  for  confining transfers "by operation of law" to transfers 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  any  statute but by the operation  of  their  respective personal law.  In order to constitute a transfer of property "by  operation of law" all that is necessary is  that  there must  be  a passing of one person’s rights  in  property  to another  person  by  the force of  some  law,  statutory  or otherwise. Reference has already been made to the case of  Purmananddas Jivandas v. Vallabdas Wallji (supra) where, by applying  the equitable  principle, Sargent, C.J., upheld the  appellant’s right  to  maintain the application for execution.   In  the beginning the learned Chief Justice founded his decision  on the  ground that the appellant had become the transferee  of the  decree "by operation of law".  This view appears to  me to be logical, for it was by the operation of the  equitable principle  that  the  right,  title  and  interest  of   the transferor in the after-acquired decree became the  property of the appellant, In other words, 1397 it was equity which operated on the decree as soon as it was passed and passed the interest of the decree-, holder to the appellant.  The result of this transmission was to  transfer the  property  from the decree holder to the  appellant  and this  transfer  was brought about by the  operation  of  the equitable principle discussed above which is as good as  any rule  of law.  The actual decision in Purmananddas  Jivandas v. Vallabdas Wallji (supra) may well be supported as an  in- stance  of transfer by operation of law and indeed  Sargent, C.J.,  himself first described the transfer in that case  as being  one by operation of law.  The same remarks  apply  to the  other  two cases of Ananda Mohon Roy v.  Promotha  Nath Ganguli  (supra)  and Chimanlal Hargovinddas  v.  Ghulamnabi (Supra)  relied  on by learned counsel  for  the  respondent company. 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   the properties  and mesne profits.  In August 1928, i.e.,  after the passing of the decree the plaintiff executed a deed  for the sale of the properties to the appellant who by the terms of  the  deed  was to obtain possession  of  the  properties

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through  Court on payment of the amount  mentioned  therein. The plaintiff deposited the necessary amount and applied for execution  of  the decree but she died  shortly  thereafter. 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 that the sale deed covered the decree and, therefore, the appellant was a transferee of the decree by assignment in writing.  This was sufficient to dispose of the  case but the learned Judges tried to reconcile some  of the earlier cases by deducing two propositions: (1)  that the words "by operation of law" cannot be  invoked so as to make an assignment operative to transfer the decree and   the  right  under  it  which  would  upon   the   true construction of its terms, otherwise, be inoperative in that regard; and (2)  that although in certain cases principles of equity may be relied on, e.g., in the case of a transfer 1398 by  trustees and a beneficiary, such principles cannot    be considered  as rendering a transfer valid "by  operation  of law". 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 existence, no equitable  principle need be invoked, for in that  case  the transfer  is  by  the  deed itself and  as  such  is  by  an assignment  in writing.  It is only when the deed  does  not effectively  transfer the decree because, for instance,  the decree  is  not then in existence, but constitutes  only  an agreement to transfer the decree after it is passed that the invocation of the equitable principle becomes necessary  and it  is  in  those  circumstances  that  equity  fastens  and operates  upon  the 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  transfer by operation of law could not be invoked, no exception  need then  be  taken.  As regards the  second  proposition  which appears  to be founded on the observations of Mukherji,  J., in Mathurapore Zamindary Co.’s case (supra) I do not see why the equitable principle may be relied on only in the case of a transfer by trustees to cestui que trust.  Indeed, it  was applied  in  the  two  earlier  English  cases  as   between mortgagor  and mortgagee and in 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 in the  relationship  of trustee  and beneficiary.  Nor do I see why, in cases  where the equitable principle applies, the transfer should not  be regarded as one by operation of law. In Mahadeo Baburao Halbe v. Anandrao Shankarrao  Deshmukh(1) the judgment confined transfers by operation of law to cases of  death,  devolution or succession for which,  as  already stated, I see no warrant. (1)  [1933] I.L.R. 57 Bom. 513. 1399 The  decision  in  Periakatha  Nadar  v.  Mahalingam(1)   is 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 including  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

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applied for execution of the decree.  Pandrang Rao, J. said, at p. 544:- "It  appears to us that the words ’operation of law’  cannot apply  to, a case where a person has become the owner  of  a decree by some transaction inter vivos.  It applies to cases where the decree has been transferred from one to another by way  of  succession or where there is a  bankruptcy  or  any similar event which has the effect in law of bringing  about such a transfer". If the purchaser of a property in execution sale becomes the transferee  of the property by operation of law 1, for  one, cannot  see  why the purchaser of a property at  an  auction sale  held  in a partnership action under the order  of  the Court made in invitum will not be a transferee by  operation of  law.   If  an  involuntary  execution  sale  is  not   a transaction inter vivos why should an auction sale held in a partnership action in the teeth of opposition of the parties be a transaction inter vivos?  The learned Judges  concluded that as no particular form of assignment was prescribed  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  sale  passed  the  interest  of  all  the partners  other  than the purchasing partner in  the  decree solely to (1)  A.I.R. 1936 Mad. 548. 179 179 1400 the latter.  I do not see why a transfer thus brought  about should  not,  like a transfer effected by a  Court  sale  in execution,  be regarded as a transfer by operation  of  law. Further,  as,I have already said, there is no  valid  reason for confining transfer by operation of law to succession and bankruptcy or the like. In G. N. Asundi v. Virappa Andaneppa Manvi(1) a father  sued his  sons  for a declaration of his sole title to  a  decree previously  obtained  by the sons against a third  party  on promissory  notes.  The parties came to a compromise  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 their 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 law was obviously intended  to be  confined  to  testamentary  and  intestate   succession, forfeiture, insolvency and the like.  This was only  because the   Court  felt  bound  to  hold  that  the  decision   in Abedoonisa’s  case-had so limited it.  It was  also  pointed out-I think correctly -that a decree declaring the title  of the  decree-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  decree by  operation of law within the meaning of Order  XXI,  rule 16.   This  was  also held in a number  of  cases  including Mahadeo  Baburao  Halbe’s case (supra)  and  Firm  Kushaldas

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Lekhraj  v.  Firm  Jhamandas  Maherchandani(2).   This  must follow  from  the very nature of a  declaratory  decree.   A declaratory  decree does not create or confer any new  right but declares a pre-existing right.  Therefore, when a (1)  I.L.R. [1939] Bom. 271. (2)  A.I.R. 1944 Sind 230. 1401 declaratory  decree declares the right of the  decree-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 declaratory decree is passed does not fall within Order XXI, rule 16, Code of Civil Procedure. The  last  case to which reference need be made is  that  of Maya  Debi  v.  Rajlakshmi  Debi(1).   There  a  Darpatnidar deposited  under  section 13(4) of the Bengal  Patni  Taluqa Regulation (VIII of 1819) the 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 Patnidar   from   another  Darpatnidar.    Subsequently   he relinquished possession in favour of the Patnidar by  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   Varpatnidar   against   another Darpatnidar.  It was held that in view of the provisions  of section 13(4) the Patnidar on getting back possession of the putni  became the transferee 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 result of the authorities appears to me to be that if by reason  of  any provision of law,  statutory  or  otherwise, interest in property passes from one person to another there is a transfer of the property by operation of law.  There is no  reason that I can see why transfers by operation of  law should  be regarded as confined to the three cases  referred to  by  the  Privy  Council  in  Abedoonissa’s  case.    If, therefore,  I were able to construe the document of the  7th February  1949 to be a transfer or an agreement to  transfer the  decree to be passed in future then I would have had  no difficulty  in  holding  that by  operation  of  equity  the beneficial interest in the decree (1)  A.I.R. 1950 Cal. 1. 14O2 was   immediately  after  its  passing  taken  out  of   the transferors  and passed to the respondent company  and  that the  latter  had become the transferees of  the  decree  now sought  to be executed by operation of law.  As, however,  I have held that that document did not cover the decree, there was  no room for the application of the equitable  principle and the respondent company cannot, therefore, claim to  come under Order XXI, rule 16 as transferees by operation of  law and  cannot maintain the application for execution.    There  is  another  ground  on  which  the  right  of  the respondent company to maintain the application for execution has  been  sought  to  be 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: "146.   Proceedings  by or against  representatives.Save  as otherwise  provided by this Code or by any law for the  time

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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 application may be made by or against any person claiming under him". There are two questions to be considered before the  section may  be  applied,  namely, (1) whether  the  Code  otherwise provides and (2) whether the respondent company can be  said to be persons claiming under the decree-holder.  As regards. (1) it is said that Order XXI, rule 16 specifically provides for application for execution by a transferee of decree and, therefore, a transferee of decree cannot apply under section 146 and must bring himself within Order XXI, rule 16.   This is  really  begging  the question.   Either  the  respondent company  are transferees of the decree by an  assignment  in writing  or  by operation of law, in which  case  they  fall within Order XXI, rule 16, or they are not such transferees, in  which event they may avail themselves of the  provisions of  section 146 if the other condition is fulfilled.   There is  nothing  in Order XXI, rule 16 which,  expressly  or  by necessary implication 1403 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  provided by this Code"?  The answer  is  that those  words  are not meaningless but have  effect  in  some cases.  Take, by way of an illustration, the second  proviso to Order XXI, rule 16 which provides that where a decree for payment  of  money  against two or  more  persons  has  been transferred to one of them it shall not be executed  against the  others.  This is a 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 execution 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 section, namely, that they can, be  said to be claiming under the decree-holder. A person may conceivably become entitled to the benefits  of a  decree  without  being  a transferee  of  the  decree  by assignment  in  writing  or by operation of  law.   In  that situation the person so becoming the owner of the decree may well  be  regarded as a person claiming  under  the  decree- holder  and so it has been held in Sitaramaswami v.  Lakshmi Narasimha(1), although in the earlier case of Dost  Muhammad v. Altaf Husain (supra) it was held otherwise.  The case  of Kangati  Mahanandi Reddi v. Panikalapati Venkatappa(2)  also hold  that  the  provisions of Order XXI, rule  16  did  not prevent execution of the decree under section 146.  In  that case it was held that the appli- (1)  [1918] I.L.R. 41 Mad. 510. (2)  A.I.R. 1942 Mad. 21, 1404 cant  could not execute the decree under Order XXI, rule  16 but  he could execute the same under section 146.  The  main thing to, ascertain is as to whether the respondent  company had  any right, title or interest in the decree and  whether they  can be said to be persons claiming under  the  decree-

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holder. I  have already held that the document  under  consideration did  not  transfer  the future decree  and,  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 the then pending suit.  This transfer, under the Transfer of  Property  Act, carried all the legal incidents  and  the remedies  in  relation  to that debt.   The  transferors  no longer  had  any  right, title or interest  in  the  subject matter  of  the  suit.   After  the  transfer  it  was   the respondent company which had the right 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  the   suit.    The transferors,  therefore,  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 them to the respondent Company.  In the premises, in the eye of  the law, the position of the transferors, vis-a-vis  the respondent company, was nothing more than that of benamidars for  the respondent company and when the decree  was  passed for the recovery of that debt it was the respondent  company who  were  the real owners of the decree.   As  between  the respondent  company and the transferors the former may  well claim  a  declaration  of their title.   Here  there  is  no question of transfer of the decree by the transferors to the respondent company by assignment of the decree in writing or by operation of law and the respondent company cannot  apply for execution of the 1405 decree under Order XXI, rule 16.  But the respondent company are,  nonetheless, the real owners of the decree because  it is  passed in relation to and for the recovery of  the  debt which undoubtedly they acquired by transfer by the  document under consideration.  The respondent company were after  the transfer,  the  owners  of the debt which  was  the  subject matter  of  the  suit and the legal  incidents  thereof  and consequently  were  the  real owners  of  the  decree.   The respondent  company  derived  their title  to  the  debt  by transfer from the transferors and claimed the same under the latter.   When the respondent company be,came the  owner  of the decree immediately on its passing they must, in relation to  the decree, be also regarded as persons  claiming  under the  transferors.   The respondent company  would  not  have become  the owner of the decree unless they were the  owners of  the debt and if they claimed the debt under  the  trans- ferors  they must also claim the relative decree  under  the transferors  as  accretions, as it were, to  their  original right  as  transferees  of the debt.   In  my  opinion,  the respondent  company are entitled under section 146  to  make the  application  for execution which the  original  decree- holders could do. In Mathurapore Zamindary Co. Ltd. v. Bhasaram Mandal (supra) Mukherji, J., felt unable to assent to the broad proposition that  Courts  of  execution  have  to  look  to  equity   in considering   whether  there  has  been  an  assignment   by operation  of law.  I see no cogent reason for  taking  this view.   If the executing 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  questions

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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 its  mind  to  the  simple equitable   principle   which  operates  to   transfer   the beneficial  interest  in  the after-acquired  decree  or  to questions arising under section 146.  Section 47 of the Code of  Civil  Procedure does require that the  executing  Court alone must determine all questions arising between the 1406 parties  or  their  representatives  and  relating  to   the execution,,  discharge  or satisfaction of  the  decree  and authorises  it even to treat the proceedings as a suit.   As the  assignees from the plaintiff of the 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. Learned   Counsel  for  the  appellant  contends  that   the application for execution was defective in that although  it purported  to  be an application for execution  under  Order XXI,  rule 1 1, it did not comply with the  requirements  of that  rule  in that it did not specify any  of  the  several modes  in  which the assistance of the Court  was  required. The application was undoubtedly defective as the decision in the  case of Radha Nath Das v. Produmna Kumar Sarkar(1)  and Krishna Govind Patil v. Moolchand Keshavchand Gujar(1)  will show  but this objection was not taken before the  executing Court  which could then have returned the  application,  nor was any objection taken by the appellant at any later  stage of the proceedings.  Further, it appears that the respondent company  actually  presented another tabular  statement  for execution specifying the mode in which the assistance of the Court was required.  In these circumstances, it is not  open to  the  appellant to contend that the  application  is  not maintainable. The result, therefore, is that this appeal must be dismissed with costs. BHAGWATI J.-I agree that the appeal be dismissed with costs. I would however like to record my own reasons for doing so. Habib  & Sons, a partnership firm which carried on  business as  merchants  and Pukka Adatias in bullion  and  cotton  in Bombay filed a suit against the Appellant in the City  Civil Court, Bombay being Summary (1)  I.L.R. (1939) 2 Cal. 325. (2)  A.I.R. 1911 Bom. 302. 1407 Suit No. 233 of 1948, to recover a sum of Rs. 7,113-7-0 with interest  and  costs.  During the pendency of  the  suit  an agreement  was  arrived  at between Habib  &  Sons  and  the Respondents  on the 7th February, 1949 under which  Habib  & Sons  transferred  to  the  Respondents  inter   alia....... Fourthy:-All the book and other debts due to the Vendors  in connection  with  the  said Indian  business  and  the  full benefit  of  all securities  for  the  debts................ Sixthly:-All  other  property  to  which  -the  Vendors  are entitled  in connection with the said Indian business".   As consideration   for  the  said  transfer   the   Respondents undertook  to  pay satisfy, discharge and  fulfill  all  the debts, liabilities contracts and engagements of the  vendors in  relation  to the said Indian business and  to  indemnify them’ against all proceedings, claims and demands in respect thereof.  The Respondents did not take any steps under Order XXII,  rule  10  of the Code of  Civil  Procedure  to  bring themselves on the record of the suit as plaintiffs in  place

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and stead of Habib & Sons and a decree was passed in  favour of Habib & Sons against the Appellant on the 15th  December, 1949 for Rs. 8,428/7/- inclusive of interest and costs  with interest on judgment at 4 per cent. per annum till  payment. Both the partners of Habib & Sons were declared evacuees and by  his  order dated the 2nd August, 1950 the  Custodian  of Evacuee  Property,  Bombay  confirmed  the  transaction   of transfer of the business of Habib & Sons to the  Respondents as evidenced by the agreement dated the 7th February,  1949. A  communication  to  that  effect  was  addressed  by   the Custodian  to  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 Procedure to execute  the decree obtained by Habib & Sons against the Appellant.  That application  was  by  the Respondents as  assignees  of  the decree and the mode in which the assistance of the Court was required was that the Court should declare the Respon- 1408 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, calling  upon Habib & Sons and the Appellant to  show  cause why the decree passed in favour of Habib & Sons and by  them transferred to the Respondents, the assignees of the  decree should  not be executed by the said transferees against  the Appellant.   The  Appellant showed cause and  contended  (1) that the deed of assignment in favour of 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 XXI, Rule 16 of  the  Code of Civil Procedure.  The Chamber  Summons  was adjourned  to  Court in order to take evidence  whether  the document  in question 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 Jiwandas v. Vallabdas Wallji  (1) and Chimanlal Hargovinddas v.  Gulamnabi(2)  and held  that  the  Respondents were entitled  to  execute  the decree  under  Order  XXI,  rule 16 of  the  Code  of  Civil Procedure. An  appeal  was  taken by the Appellant to  the  High  Court against  this decision of the City Civil Court.  The  appeal came for hearing before Dixit, J. The finding that the  deed of  assignment was duly proved was not challenged.  But  the contention  that  inasmuch as there was no transfer  of  the decree itself, but only of the property the Respondents were not entitled to apply to execute the decree was pressed  and was  negatived  by  the learned Judge.   The  learned  Judge observed that if the language of Order XXI, (1)  [1877] I.L.R. 11 Bom. 506. (2)  I.L.R. [1946] Bom. 276. 1409 rule  16  was strictly construed it seemed to him  that  the Respondents  had no case.  But he followed the decisions  in Purmananddas  Jiwandas v. Vallabdas Wallji(1) and  Chimanlal Hargovinddas v. Gulamnabi(2) and dismissed the appeal. A  Letters Patent Appeal was filed against this decision  of Dixit,  J.  and it came on for hearing  and  final  disposal

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before  a  Division Bench of the High Court  constituted  by Chagla,  C.J. and Shah, J. The Division 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.  They however were of the opinion that  the High Court had consistently taken the view that there  could be  an  equitable  assignment  of  a  decree,  which   would constitute the assignee an assignee for the purpose 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  those  two decisions,  that it constituted an equitable  assignment  of the decree which was ultimately passed in favour of Habib  & Sons,  that the application for execution  was  maintainable under  Order  XXI, rule 16 and dismissed  the  appeal.   The Appellant applied for and obtained the necessary certificate under article 133 (1)(c) of the Constitution. Order XXI, rule 16 provides for an application for execution by transferee of a decree and runs as under:- "Where    a    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: (1)  [1877] I.L.R. 11 Bom. 506. (2)  I.L.R. [1946] Bom. 276. 1410 Provided  that, where the decree I 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 The  transfer  contemplated  under this rule  is  either  by assignment  in writing or by operation of law.  It  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  dated  the  7th  February  1949  operates  as  a transfer  of the decree by assignment in writing within  the meaning  of  Order  XXI,  rule  16  of  the  Code  of  Civil Procedure. A strict and narrow construction has been put upon the words "where a decree is transferred by assignment in writing"  by the  High  Court  of  Madras  in  Basroovittil  Bhandari  v. Ramchandra   Kamthi(1)  and  the  decisions  following   it, particularly   Kangati  Mahanandi  Reddi   v.   Panikalapati Venkatappa & Another(2) and by the High Court of Calcutta in Mathurapore  Zamindary Co. Ltd. v. Bhasaram Mandal(1)  which is  followed  in Prabashinee Debi  v.  Rasiklal  Banerji(4). They  have  held  that the  words  "decree-holder"  must  be construed’  as  meaning  decree-holder in fact  and  not  as including  a  party  who in  equity  may  afterwards  become entitled to the rights of the actual decree-holder and  that the language of Order XXI, 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  in effect conceded by Dixit, J.  and  by  the Division Bench when they observed that on a strict construc-

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(1)  (1907) 17 Madras Law Journal 391, (2)  A.I R. 1942 Madras 21. (3)  (1924) I.L.R. 51 Calcutta 703. (4)  (1931) I.L R. 59 Calcutta 297. 1411 tion  of Order XXI, rule 16 there was no assignment  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. Vallabdas Wallji(1)  and Chimanlal Hargovinddas V. Gulamnabi(2).  These two decisions have  applied  the  equitable principle  enunciated  by  Sir George Jessel, M.   R. in Collyer v. Isaacs(1) as under:- "The  creditor had a mortgage security on existing  chattels and  also the benefit of what in form was an  assignment  of non-existing  chattels which might be afterwards brought  on to the premises.  That assignment, in fact, constituted only a  contract to give him the after-acquired chattels.  A  man cannot  in equity, any more than at law, assign what has  no existence.   A man can contract to assign property which  is to  come into existence in the future, and when it has  come into 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 Debi(4)  and  the High   Court  of  Madras  in  Kangati  Mahanandi  Reddi   v. Panikalapati Venkatappa and another(5) observed that if  the matter  were res integra much might perhaps be said for  the contention  that  the assignee under  similar  circumstances could execute the decree under Order XXI, rule 16. The decision in Purmananddas Jivandas V. Vallabdas Wallji(1) and  the equitable principle enunciated therein was  brought to the notice of the learned Judges who decided the case  of Mathurapore Zamindary Co. Ltd. v. Bhasaram Mandal(6) but was negatived  by them and they relied upon the observations  of the  Privy  Council  in  dealing  with  a  somewhat  similar provision  contained in Section 208 of Act VIII of  1859  in the case of Abedoonissa Khatoon v. Ameeroonissa Khatoon(1): (1) (1877) I.L.R. 11 Bom. 506.(2) I.L.R. 1946 Bom. 276. (3) L.R. 19 Ch. D. 342.(4) I.L.R [1939] 2 Calcutta 341. (5) A.I.R. 1942 Madras 21.(6) (1924) I.L.R. 51 Calcutta 703. (7)  (1876) L.R. 4 I.A. 66. 1412 "Their  Lordships have further to observe, that  they  agree with the Chief Justice in the view which he  expressed,-that this  was not a section intended to apply to cases  where  a serious contest arose with respect to the rights of  persons to an equitable interest in a decree". Rankin,  C.J. laid stress upon this aspect of  the  question and  delivered  a similar opinion in  Prabhashinee  Debi  v. Rasiklal Banerji(1) at page 299:- "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 have 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  entitled in equity under an agreement to the benefit  of the decree-it is optional with the courts to give effect  to the  rule according as the case is a clear one or one  which requires  investigation  of complicated facts  or  difficult questions of law unsuited for discussion on a mere execution application.   In that view, if it were understood that  the court had a complete discretion to apply the rule or not, it might be that the rule would be workable; but I do not think

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that any such discretion as that is intended to be given  by the  rule"  and he fortified himself in  his  conclusion  by relying upon the deletion of the words "if that Court thinks fit  the  decree may be executed" when the  Civil  Procedure Code of 1908 was enacted. Order  XXI,  rule  16 of the Code of Civil  Procedure  is  a statutory  provision  for execution by the transferee  of  a decree and unless and until a person applying for  execution establishes  his  title  as the transferee of  a  decree  he cannot  claim  the  benefit  of  that  provision.   He   may establish his title by proving that he is a transferee of  a decree  by  assignment in writing or by  operation  of  law. Section  5  of  the  Transfer  of  Property  Act  defines  a "transfer of pro- (1)  [1931] I.L.R.59 Calcutta 297. 1413 perty" as an act by which the transferor conveys property in present  or in future to the transferee or  transferees.   A transfer  of  a  decree  by assignment  in  writing  may  be effected by conveying the decree in present or in future  to the  transferee.   But even for the transfer to  operate  in future  the  decree  which  is the  subject  matter  of  the transfer  must be 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 transfer of property that is  not  in existence  operates  as a contract to be  performed  in  the future  which  may be specifically enforced as soon  as  the property comes into existence.  As was observed by the Privy Council in Rajah Sahib Perhlad v. Budhoo(1):- "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 performed in  future,  and  upon  the happening of a contingency, of which the purchaser may claim a specific performance, if be comes into Court shewing  that he has himself done all that he was bound to do". It is only by the operation of the equitable principle  that as soon as the property comes into existence and is  capable of being identified, equity taking as done that which  ought to  be  done fastens upon the property and the  contract  to assign thus becomes a complete equitable assignment.  In the case of a decree to be passed in the future therefore  there could  be no assignment of the decree unless and  until  the decree  was passed and the agreement to assign  fastened  on 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  transferred  by  the assignment  in  writing and the matter resting merely  in  a contract  to  be  performed  in  the  future  which  may  be specifically enforced as soon as the decree was passed there would be no transfer (1) [1869] 12 M.I.A. 276. 1414 automatically  in favour of the "transferee" of  the  decree when passed.  It would require a further act on the part  of the  "transferor" to completely effectuate the transfer  and if  he  did not do so the only remedy  of  the  "transferee" would-be to sue for specific performance of the contract  to transfer.   There  would therefore be no legal  transfer  or assignment of the decree to be passed in future by virtue of the  assignment in writing executed before the  decree  came into  existence  and the only way in  which  the  transferee could  claim  that  the decree was  transferred  to  him  by

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assignment  in  writing  would be by the  operation  of  the equitable  principle  above enunciated and the  contract  to assign having become a complete equitable assignment of  the decree. Is there any warrant for importing this equitable  principle while  construing the statutory ’Provision enacted in  Order XXI,  rule 16 of the Code of Civil Procedure?  The  Code  of Civil  Procedure  does not prescribe any mode  in  which  an assignment  in  writing has got to be executed in  order  to effectuate a transfer of a decree.  The only other statutory provision in regard to assignments in writing is to be found in  Chapter  VIII  of the Transfer  of  Property  Act  which relates to transfers of actionable claims and an  actionable claim  has been defined in section 3 of the Act as "a  claim to any debt................ or to any beneficial interest in movable  property  not in the possession, either  actual  or constructive,  of  the  claimant,  which  the  Civil  Courts recognize as affording grounds for relief................... A judgment debt or decree is not an actionable claim for  no action is necessary to realise it.  It has already been  the subject of an action and is secured by the decree.  A decree to be passed in future also does not come as such within the definition  of  an  actionable claim and  an  assignment  or transfer  thereof  need  not  be  effected  in  the   manner prescribed  by section 130 of the Transfer of Property  Act. If  therefore the assignment or transfer of a decree  to  be passed  in the future does not require to be effectuated  in the  manner  prescribed  in the statute there  would  be  no objection to the 1415 operation  of the equitable principle above  enunciated  and the  contract  to  assign evidenced  by  the  assignment  in writing  becoming  a complete equitable  assignment  of  the decree when passed.  The assignment in writing of the decree to be passed would thus result in a contract to assign which contract  to  assign  would  become  a  complete   equitable assignment on the decree being Passed and would fulfill  the requirements  of  Order  XXI,  rule 16  in  so  far  as  the assignment  or  the transfer of -the decree  would  in  that event  be  effectuated  by an assignment  in  writing  which became  a complete equitable assignment of the  decree  when passed.   There  is nothing in the provisions of  the  Civil Procedure Code or any other law which prevents the operation of  this equitable principle and in working out  the  rights and  liabilities  of the transferee of a decree on  the  one hand  and the decree-holder and the judgment debtor  on  the other,  there is no warrant for reading the words  "where  a decree.......................  is transferred by  assignment in  writing" in the strict and narrow sense,, in which  they have  been read by the High Court of Madras in  Basroovittil Bhandari  v.  Ramchandra  Kamthi(1) and the  High  Court  of Calcutta in Mathurapore Zamindary Co. Ltd. v.     Bhasaram Mandal(2)  and Prabashinee Debi v. Rasiklal Banerji(3).   It is significant to observe that the High Court of Calcutta in Purna  Chandra Bhowmik v. Barna Kumari Debi(1) applied  this equitable  principle  and held that the plaintiff  in  whose favour the defendant had executed a mortgage bond  assigning by way of security the decree that would be passed in a suit instituted  by  him against a third party  for  recovery  of money  due on unpaid bills for work done was entitled  to  a declaration that be was the assignee of the decree passed in favour of the defendants and was as such entitled to realise the  decretal debt either amicably or by execution.  If  the plaintiff was thus declared to be the assignee of the decree subsequently passed in favour of the defendant and  entitled

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to realise the decretal amount by execution he could (1)  [1907] 17 MI.L.J. 391. (3)  [1931] I.L.R. 59 Cal. 297. (2)  [1924] I.L.R. 51 Cal. 703. (4)  I.L.R. [1939] 2 Cal 341. 181 1416 apply  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  of  the assignment  in  writing in his favour.  There  could  be  no -objection  to decide questions involving  investigation  of complicated facts or difficult questions of law in execution proceedings,  as section 47 of the Code of  Civil  Procedure authorises  the  Court executing the decree  to  decide  all questions  arising therein and relating to execution of  the decree  and subsection (2) further authorises the  executing Court to treat a proceeding under the section as a suit thus 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 Purmananddas jivandas v. Vallabdas  Wallji(1) and ending with Chimanlal  Hargovinddas v.  Gulamnabi  (2) importing the equitable  principle  above enunciated therefore appears to me to be more in  consonance 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. Even if an equitable assignment be thus construed as falling within an "assignment in writing" contemplated by Order XXI, rule  16  of the Code of Civil Procedure it would  in  terms require  an assignment of the decree which was to be  passed in  the  future in favour of the assignor.  In  the  present case, it is impossible to read the deed of assignment  dated the 7th February, 1949 as expressly 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 the Courts below in the  present case nor does it appear to have been considered in -most  of the judgments above referred to. There is no doubt on the authorities that a mere transfer of property as such does not by itself spell out (1)  [1877] I.L.R. 11 Bom. 506. (2)  I.L R. 1946 Bom.276. 1417 a  transfer  of  a decree which has been passed  or  may  be passed  in respect of that property and it would require  an assignment  of  such  decree  in  order  to  effectuate  the transfer (vide Hansraj Pal v. Mukhraji Kunuvar &  others(1), Mathurapore  Zamindary Co. Ltd. v. Bhasaram  Mandal(2),  and Kangati   Mahanandi  Reddi  v.  Panikalapati  Venkatappa   & another(3).  Where however the property which is transferred is an actionable 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   interest  in  moveable  property  not  in   the possession, either actual or constructive, of the  claimant, which  the 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

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and remedies of the transferor, whether by way of damages or otherwise,  vest in the transferee, whether such  notice  of the  transfer as is therein provided be given to the  debtor or  not.   If  the book debt or the  property  which  is  an actionable  claim  is thus transferred by an  assignment  in writing  all  the rights and remedies of the  transferor  in respect  thereof including the right to prosecute the  claim to judgment 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  of   the assignment  -as a necessary corollary thereof.  Not only  is the actionable claim thus transferred but all the  necessary adjuncts or appurtenances thereto are transferred along with the  same to the transferee.  Section 8 of the Act  provides that   unless   a  different  intention  is   expressed   or necessarily implied, a transfer of property passes forthwith to  the transferee all the interest which the transferor  is then  capable  of passing in the property and in  the  legal incidents thereof These incidents include where the property is (1)  [1908] I.L.R. 30 All. 28.  (2) [1924] I.L. R.  51  Cal. 703. (3) A.I.R. 1942 Mlad. 21. 1418 a  debt  or other actionable claim,  the  securities  there- for.........................  but  not arrears  of  interest accrued  before the transfer.  In cases of transfer of  book debts or property coming within the definition of actionable 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 and the  moment a  decree is passed in his favour by the court of law,  that decree  is also automatically transferred in favour  of  the transferee  by virtue of the assignment in  Writing  already executed by the transferor.  The debt which is 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 in the decree and  the  transferee  is without anything more entitled to the benefit of the  decree passed by the court of law in favour of the transferor.   It would  have been open to the transferee after the  execution of the deed of assignment in his favour to take steps  under Order XXXII, rule 10 of the Code of Civil Procedure to  have himself substituted in the pending litigation as a plaintiff 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 ultimately passed by the  court of  law  in favour of the transferor,  the  only  disability attaching  to his position being that under section 132.  of the  Act he would take the actionable claim subject  to  all the  liabilities  and equities to which the  transferor  was subject in respect thereof at the date of the transfer.  The transferee of the actionable claim thus could step into  the shoes  of the transferor and claim to be the  transferee  of the  decree by virtue of the assignment in writing  executed by the transferor in his favour and could therefore claim to execute the decree as transferee under Order XXI, rule 16 of the, Code of Civil Procedure. This aspect could not be considered by the High 1419 Court  of  Bombay  in  Purmananddas  Jivandas  v.  Vallabdas Wallji(1)  because the assignment there was executed on  the

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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 by the old section 232 of the Code of Civil  Procedure.   It was also not considered by  the  Full Bench of the 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  in  Thakuri Gope  and  Others v. Mokhtar Ahmad & Another(3),  went  very near  it when it observed that all that was transferred  was an  actionable claim, but did not work out the  consequences thereof and its reason in was deflected by the consideration of  the equitable principles and the  applicability  thereof while construing the provisions of Order XXI, rule 16 of the Code  of  Civil 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 the claim 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, fact that the claim was reduced by the-Court  did not make, in my opinion, any difference". It  no doubt applied the equitable principle also  and  held that the mortgage. must be deemed to have attached itself to the  decree which was for a definite amount as soon  as  the decree  was passed, but further observed that the  plaintiff was  entitled to a declaration 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  aspect of the question had been properly presented  to Dixit, J. or the Division Bench in the (1)  [1877] I.L.R. 11 Bom. 506. (3)  A.I.R.[1922] Patna 563, (2)  I.L.R.[1946] Bom. 276. (4)  I.L.R, [1939] 2 Cal. 341, 1420 present  case  they  also  would  have  come  to  the   same conclusion. Mr.  Umrigar, learned counsel for the  Respondents,  further urged that even if the Respondents were not entitled to  the benefit of Order XXI, 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 deed of assignment dated 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  deed  of  assignment transferred  the  debt which was the subject matter  of  the pending  litigation in the City Civil Court between Habib  & Sons  and  the  Appellant.  Habib & Sons  could  have  taken proceedings in execution and made the application for execu- tion of the decree against the Appellant and the Respondents 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 II of the Code of Civil Procedure.  He  also urged that Order XXI, rule 16 of the Code of Civil Procedure did not prohibit such execution proceedings at the  instance of  the  Respondents and for this purpose  relied  upon  the observations  of  the learned Judges of the  High  Court  of Madras in Kangati Mahanandi Reddi v. Panikalapati Venkatappa & another(1) at page 23:-

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"We are unable to hold that merely because rule 16 has  been interpreted as applying only to decrees in existence at  the time  of  the  transfer, it prohibits an  application  by  a transferee who obtained the transfer of a decree, a transfer which is legally valid and is embodied in a written deed (as rule 16 requires) before the decree was actually passed.  To permit execution by such 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 I.R. 1942 Mlad. 21. 1421 true  owner  of  the decree, and he has  his  written  title ’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 Respondents could not avail themselves  of Order XXI, rule 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  Court of Allahabad in Shib Charan Das v. Ram Chander &  others(2). This  contention  of  the Appellant  is  obviously  unsound. Order XXI, rule 16 provides for execution of a decree at the instance  of  a, transferee by assignment in writing  or  by operation  of law and enables such transferee to  apply  for execution of the decree to the Court which passed it.  If  a transferee  of a decree can avail himself of that  provision by  establishing that he is such a transferee he  must  only avail  himself  of  that  provision.  But  if  he  fails  to establish his title as a transferee by assignment in writing or by operation of law within the 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  himself of section 146 if the provisions  of  that section can be availed of by him.  That is the only  meaning of the expression "save as otherwise provided by this Code". If  a  person does not fall within the four 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  construed  as  an  "otherwise   provision" contained  in the Code.  I am therefore of the opinion  that if the Respondents could not avail themselves of Order XXI, (1) A.I.R. 1922 Patna 663. (2) A.I.R. 1922 All. 98, 1422 rule 16 of the Code of Civil Procedure they could  certainly under  the  circumstances  of  the  present  case  take  the execution proceedings and make the application for execution of  the decree passed by the City Civil Court in  favour  of Habib & Sons under section 146 of the Civil Procedure Code. An  objection was however taken on behalf of  the  Appellant during the course of the arguments before us though no  such objection   was  taken  in  the  Courts  below,   that   the application  for  execution  made  by  the  Respondents  was defective  inasmuch as it was not an application  in  proper form  under  Order  XXI,  rule  11  of  the  Code  of  Civil Procedure.   Order  XXI,  rule  11(2)  (j)  prescribes  that particulars in regard to the mode in which the assistance of the  Court  was required should be set out  there  in.   The

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respondents  had in -their application for  execution  filed before  the  City  Civil Court not mentioned  any  of  these particulars  but  had  only stated  that  the  Court  should declare  them  the assignees of the decree as  the  decretal debt along with other debts were transferred by Habib & Sons to  them  by the 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 Habib & Sons.  This was no compliance with the provisions of Order XXI, rule 11(2) (j) and therefore there was no  proper application for execution before the Court and the same  was liable  to be dismissed.  Reliance was placed in support  of this contention on a decision of the High Court of  Calcutta in Radha Nath Das v. Produmna Kumar Sarkar(1), where it  was held dissenting from a decision of the High Court of  Bombay in Baijnath Ramchander v. Binjraj Joowarmal Batia & Co.  (2) that under Order XXI, rule 16 of the Code of Civil Procedure the ,assignee of a decree cannot make two applications,  one for  recording the assignment and another for executing  the decree.   The  assignee  of a decree  could  only  make  one application  for execution under Order XXI, rule 1 1 of  the Code of Civil Procedure specifying therein the mode in which the assistance of the Court (1) I.L.R. [1939] 2 Calcutta 325. (2) I.L.R [1937] Bombay  691. 1423 was required and it was only after such application had been made  to  the Court which passed the decree that  the  Court would  issue  notice  under  Order  XXIL  rule  16  to   the transferor and the judgment debtor and the decree would  not be  executed until the Court had heard their  objections  if any to its execution.  Sen, J. in that case observed at page 327:- "It  seems to me to be obvious from the wording of the  rule that  there can be no notice to the transferor or  judgment- debtor  and  no hearing of any objection  unless  and  until there is an application for execution.  Tile notice and  the entire proceedings under Order XXI, rule 16, originate  from an   application  for  execution.   If  there  is  no   such application  the  proceedings are  without  any  foundation. Order  XXI,  rule 16, of the Code nowhere  provides  for  an application  to record an assignment or for  an  application for  leave  to  execute a decree by an assignee  or  for  an application 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  of Bombay  in Baijnath Ramchander v. Binjraj Joowarmal Batia  & Co.(1)  and  Krishna Govind Patil v.  Moolchand  Keshavchand Gujar(2)  decide  anything  to the  contrary  they  are  not correct.  The position was clarified by a later decision  of the High Court of Bombay in Bhagwant Balajirao and Others v. Rajaram Sajnaji & Others(3) where Rajadhyaksha and  Macklin, JJ.  held,  following  Radha  Nath  Das  v.  Produmna  Kumar Sarkar(1)  that  an  application made by an  assignee  of  a decree must under Order XXI, rule 16 be for the execution of the  decree  and  not  merely for  the  recognition  of  the assignment  and  for leave to execute the  decree.   It  was urged  before  the learned Judges that the practice  in  the High  Court of Bombay was to entertain applications of  this kind, but they observed that the practice if such a practice prevailed  was opposed to the provisions of the  Order  XXI, rule  16  of the Code of Civil  Procedure.   The  contention therefore urged on behalf of the Appellant that the (1)  I.L.R.[1937] Bom. 691. (3)  A.I.R.[1947] Bom. 157.

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(2)  A.I.R.[1941] Bom. 302 (F.B.) (4)  I.L.R. [1939] 2 Cal. 325. 182 1424 application for execution in the present case was  defective appears to have some foundation. This  defect  however  was  not  such  as  to  preclude  the Respondents  from  obtaining  the  necessary  relief.    The application  which  was filed by them in the  City  Civil  ’ Court was headed "application for execution under Order XXI, rule 11 of the Code of Civil Procedure" and the only  defect was in the specification of the mode in which the assistance of  the  Court  was required.  The  particulars  which  were required  to be filled in column J. were not  in  accordance with  the  requirements  of Order XXI, rule  11(2)  (j)  and should  have specified one of the modes  therein  prescribed and  certainly a declaration that the respondents  were  the assignees of the decree and the order for their substitution as  the plaintiffs was certainly not one of  the  prescribed modes  which were required to be specified in  that  column. The practice which prevailed in the High Court of Bombay  as recognised in Baijnath Ramchander v. Binjraj Joowarmal Batia & Co(1) and also in Bhagwant Balajirao and others v. Rajaram Sajnaji   &  others(3)  appears  to  have  been   the   only justification for making the application in the manner which the  respondents did.  That defect however according to  the very  same  decision  in Bhagwant Balajirao  and  others  v. Rajaram  Sajnaji & others(3) was purely technical and  might be allowed to be cured by amendment of the application.   As a matter of fact Order XXI, rule 17 lays down the  procedure on  receiving  applications for execution of  a  decree  and enjoins upon the Court the duty to ascertain whether such of the  requirements of rules 11 to 14 as may be applicable  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 remedied then and there or within  a time to be fixed by it.  When the application for  execution in  the present case was received by the City  Civil  Court, the  Court  should  have  scrutinised  the  application   as required  by Order XXI, rule 17(1) and if it was found  that the (1)  I.L.R. 1937 Bom. 691. (2)  A.I.R. 1947 Bom 157. 1425 requirements of rules 11 to 14 as may be applicable were not complied  with  as is contended for by  the  Appellant,  the Court  should have rejected the application or  allowed  the defect to be remedied then and there or within a time to  be fixed  by the Court.  Nothing of the kind was ever  done  by the  City Civil Court nor was any objection in  that  behalf taken  on  behalf  of the Appellant at any  time  until  the matter came before this Court. On  the 27th March, 1952 however a further  application  for execution  was  filed by the Respondents in the  City  Civil Court  specifying  in  column  ’J’ the  mode  in  which  the assistance of the Court was required and it was by  ordering attachment  and  sale  of  the  moveable  property  of   the Appellant  therein specified.  This further application  for execution was a sufficient compliance with the provisions of Order  XXI,  rule I 1 (2) (j) and was sufficient  under  the circumstances  to 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.

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The appeal accordingly fails and is dismissed with costs. IMAM  J.-I have had the advantage of perusing the  judgments of  my  learned brethren.  I agree that the appeal  must  be dismissed with costs and in the view expressed by them  that the  respondent should be permitted under the provisions  of section  146 of the Code of Civil Procedure to  execute  the decree  passed  in favour of Habib & Sons, as  one  claiming under the latter. The  document under which the respondent claimed to  execute 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 connection  with  the  Indian business  and  the full benefit of all  securities  for  the debts.  The document, however, neither in terms, nor by  any reasonable inter- 1426 pretation  of its contents purported to transfer any  decree which  Habib & Sons may obtain in the future.  It  seems  to me,  therefore,  that the respondent cannot claim  to  be  a transferee of the decree, which was subsequently obtained by Habib & Sons, by an assignment in writing 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 relates  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 name it stands and rule 10 enables him to do so, while rule 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  execution made by the decree-holder.  It seems  to  me, therefore, that there must be a decree in existence which is transferred  before  the  transferee can  benefit  from  the provisions of rule 16.  The ordinary and natural meaning  of the 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  Court  to  continue  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 provisions of Order XXI, rule 16  contemplate  the actual  transfer  by an 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 the meaning  of  Order  XXI,  rule  16.   In  this  respect  the decisions of the Madras High Court in Basroovittil  Bhandari v. Ramchandra Kamthi(1)   (1) (1907] 17 M.L.J. 391, 1427 and of the Calcutta High Court in Mathurapore Zamindary  Co. Ltd. v. Bhasaram Mandal(1) and Prabashinee Debi v.  Rasiklal Banerji (2) are correct. 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 unnecessary to do so in the present appeal. Appeal dismissed.

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