1. These appeals rise out of proceedings in execution ofdecrees under the following circumstances: One Chandra Nath Ganguli and hisbrother mortgaged certain properties to one Giridhari Lal Roy in 1907 togetherwith all "rents, issues and profits" of the properties mortgaged. Themortgagee obtained a decree upon the mortgage in the original side of thisCourt, and in execution of the decree the properties hypothecated together with"all arrears of rent" were Hold on the 29th July 1916 and wereconveyed to the appellants in this case by the Registrar of this Court by aconveyance, dated the 15th September 1916.

2. Before the purchase by the appellants, the mortgagorsinstituted rent suits against tenants holding james under the propertieshypothecated, and obtained decrees on the 15th September 1916, i.e, on the veryday the appellants obtained their conveyance from the Registrar. The appellantsthere upon applied for execution of the decrees. The applications were opposedby the Gangulis, with the result that they were dismissed by the Courts below.The appellants are not the decree holders, though they have got a right to thearrears of rent for which the decrees were obtained by the Gangulis, and thequestion is whether they can execute the decrees although they did not getthemselves substituted in the rent suits, which they could not do, as thedecrees were passed on the very day they obtained their conveyance.

3. The Courts below in disallowing the applications haverelied on the case of Ramsahai v. Gaya 7 A. 107 : (1884) A.W.N. 224 : 4 Ind.Dec. (N.S.) 305 and Dost Muhammad v. Altaf Husain Khan 17 Ind. Cas. 512 [LQ/AllHC/1912/332] .

4. In the first case it was held that the holder of a decreeenforcing a right of pre-emption, who subsequently to the date of the decreesells the property to a stranger and permits the latter to pay the purchase-moneydecreed into Court, does not by such conduct debar himself from obtainingpossession of the property in execution of the decree. Mahmood, J., observed:"The case now before us is one in which the preemptors right had alreadybeen established by a decree which had become final before the sale-deed of the29th November 1883 was executed. The sale deed did not transfer the decree, butthe property to the proprietary possession of which the preemptor-decree-holderwas entitled, subject only to the payment of the purchase-money within time. Itis not necessary for the purposes of this appeal to determine whether thesale-deed was valid. The question is one which, if it ever arises, can befinally determined only in a suit between the preemptor decree holder in andhis vandee, Ambica Prosad. So long as the latter does not seek execution of thedecrees, the matter cannot be regarded as a question relating to the executionof the decrees, such as would fall under the purview of Section 244 of the CivilProcedure Code."

5. It is to be observed that it was a decree in a suit forpre-emption which had already been passed before the sale-deed was executed;the vendee in that case did not seek to execute the decree, and the questionarose only between the decree holder and the judgment debtor. In the secondcase decided by Chamier, J., in the Allahabad High Court the transferee of someImmovable property pending a suit applied for execution of a compromise decreewhich was passed between the transferor and the judgment debtor subsequent tothe transfer, although be did not get himself substituted in the suit in theplace of the transferor. The transferee relied upon the provisions of Section146 of the Civil Procedure Code in support of his right to execute the decreeand it was held that he could not.

6. The cases relied upon, therefore, are distinguishablefrom the present case the facts of which are different.

7. Under Order XXI, Rule 16, the transferee of a decree"by assignment in writing or by operation of law" can apply forexecution and the question is whether the appellants come within thatdescription. In the present case there was no assignment of the decree forarrears of rent in so many words, but not only the property under which the jamasin arrears were included but also all the arrears of rants which were thesubject matter of the rent suits were assigned to the appellants. The arrearsof rent were nonetheless arrears though suits had been brought for them, anddecrees were passed for them on the day the conveyance was executed, and wethink that in these circumstances the appellants may be treated as assignees ofthe decree under Order XXI, Rule 16 In the case of Purmanand das v. Vallabdas11 B. 506 : 6 Ind Dec. (N.S.) 333, one R. died leaving his property to hisexecutors in trust for the appellant Purmanand Das and directed that theproperty should be assigned to the appellant as soon as he came of age. Theexecutors then filed a suit against certain persons for recovery of certainloans made by them as executors. While the said suit was pending, the executorsassigned all the property of their testator to the appellant. By the deed ofassignment they assigned to him inter alia "all moveable property, debts,claims and things in action whatsoever vested in them as executors." Nosteps, however, were taken subsequently to the assignment to make the assignee(the appellant) a party to the suit. The appellant, claiming to be a transfereeof the decree (which was obtained by the executors), applied for execution, andit was held that be was a transferee of the decree within the meaning ofSection 232 of the Code, that the decree had been transferred to him by"operation of law", and as such he was entitled to sue out execution.Sir Charles Sargent, Chief Justice, observed: "This assignment was made bythe trustees to Purmanand Das in the most general terms in 1870 after the suitwas filed and while it was still pending By the deed of assignment the trusteestransferred to Purmanand Das all moveable property, debts, claims and thingsin action whatsoever vested in them, which would include the claim which. wasthe subject-matter of the then pending suit; and the effect of this assignmentwas, in equity, to vest in Purmanand Das the whole interest in the decree whichwas afterwards obtained. But it has been suggested that Purmanand Das is not atransferee of the decree under Section 232 of the Civil Procedure Code, becausethe decree has not been transferred to him by assignment in writing or by operationof law; and that, therefore, he is not entitled to apply for execution. Thereis no doubt that, in a Court of Equity, in England the decree would be regardedas assigned to Purmanand Das, and he would be allowed to proceed in executionin the name of the assignors. Here there is no distinction between law andequity, and by the expression by operation of law must be understood theoperation of law as administered in these Courts. We think under thecircumstances that we must hold that this decree has been transferred toPurmanand das by operation of law. In the present case the decree has beentransferred by an assignment in writing as construed in these Courts. Theappellant is, therefore, entitled to sue out execution and must be regarded asthe representative of the original decree-holders within the meaning of Clause(c) of Section 244 of the Civil Procedure Code." We think the principlelaid down in that case may apply to the present, and that the appellants shouldbe allowed to come in under Order XXI, Rule 16, and execute the decree.

8. The orders of the Courts below are accordingly set aside,and the cases sent back to the Court of first instance in order that executionof the decrees may be proceeded with. We make no order as to costs of thisappeal. The appellants, however, will be entitled to costs of the Courts below,only one set in each Court.

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Ananda Mohan Roy and Ors. vs. Promotha Nath Ganguli and Ors. (27.02.1920 -CALHC)