Harsukhrai M. Doshi v. Ahmad Kareem

S.K. JHA, J.

(1.) The judgment-debtors in an execution case giving rise to Miscellaneous Case 47 of 1966 have obtained a rule from this court against the order dated the 29th of November, 1966 passed by the learned Subordinate Judge, 1st Court, Dhanbad.

(2.) The facts relevant for the purpose of disposal of this application can be stated in short compass. One Moinul Haque was the decree-holder who levied execution of the decree in Execution Case 65 of 1964 after the decree was made final on the 6th of August, 1964. On the 24th of December, 1965 Moinul Haque died. On the 16th of February, 1966 Ahmad Kareem, opposite party No. 1, filed an application for substitution of his name in place of the deceased decree-holder Moinul Haque. Ahmad Kareem is the son of one Md. Waliul Haque. The application for substitution in the execution case was made on the basis of an alleged oral gift of the decree in his favour by the deceased decree-holder Moinul Haque. The executing court, without hearing the petitioners judgment-debtors, ordered his name to be substituted on the basis of the claim aforesaid made by him. Against that ex parte order Civil Revision 112 of 1967 was filed in this Court by the petitioners, which was disposed of by a judgment and order dated the 10th of January, 1968 by Tarkeshwar Nath, J., allowing the application and directing that the ex parte order of substitution passed by the executing court be vacated, with a further direction to the executing court to hear the petitioners before passing any final orders on the application of opposite party No. 1. On remand by this Court, the matter regarding the substitution of opposite paaty No. 1 on the basis of his claim of assignment of the decree in his favour by oral gift by the deceased decree-holder has been reconsidered and by the impugned order in the instant miscellaneous case the learned Subordinate Judge has allowed the claim of opposite party No. 1 to be brought on the record of the execution case as a decree-holder by virtue of the assignment of the decree claimed by him.

(3.) The point for consideration in this application being not very much free from difficulty was thought fit by a learned single Judge of this Court to be referred to a Division Bench. Hence this application before us. The point arising in the present application is as to whether under the provisions of Order 21, Rule 16 of the Code of Civil Procedure (hereinafter called the Code) such a claim of assignment by virtue of an oral gift in favour of opposite party No. 1 can be held to be entertainable. When Mr. Sudhir Chandra Ghose, learned Counsel for the petitioners, made his submissions, at the outset I had a little doubt as to whether the matter in dispute could be said to be covered by Order 21, Rule 16 of the Code or more likely by the provisions of Order 22, Rule 10. Such a doubt had been created on account of a Bench decision of the Bombay High Court in the case of Krishnaji Ramchandra v. Bhikchand Ramkaran, (AIR 1942 Bom 82 [LQ/BomHC/1941/20] ) wherein it has been held, on a review of some decisions, that cases of substitution in course of execution proceedings can well be covered by the provisions of Order 22, Rule 10 of the Code since in express language the provisions of Order 22, Rules 3, 4 and 8 only have been precluded from being applied by virtue of the provisions of Order 22, Rule 12. Mr. Ghose, however, strenuously contended that even in cases of substitution in course of execution of decree the proper provisions of law to be applied would be those enjoined in Order 21, Rule 16. Having given the matter my due and serious consideration, I think, the submission of learned Counsel is well founded. Our attention was invited to three decisions of this Court, namely, those of Musammat Gulab Kuer v. Syed Mohamad Zaffar Hassan Khan, (6 Pat LJ 358) = (AIR 1921 Pat 180), F. A. McNaught v. Mt. Saraswati Thakurain, (AIR 1935 Pat 117) and Sukhdeo Bhagat v. Bishwanath Singh, (AIR 1965 Pat 85 [LQ/PatHC/1964/114] ); all the three decisions are Bench decisions. So far as the case of Musammat Gulab Kuer is concerned, Das, J., delivering the judgment of the Court, merely expressed grave doubts with regard to the applicability of provisions of Order 22, Rule 10 of the Code to execution proceedings and it was said at page 360-

"I have myself very grave doubt whether Order XXII, Rule 10, has any application to execution proceedings: but in my view it is not necessary to determine this point, I am of opinion that Order XXI, Rule 16, did apply ............"

This case, therefore, is no direct authority for the proposition that Order 22, Rule 10 would not apply to cases of execution proceedings at all since the judgment in this case proceeded upon the assumption that the provisions of Order 21, Rule 16 would apply and that on that basis the assignee of the decree was entitled to have her appeal allowed. But the two later decisions in the cases of F. A. McNaught and Sukhdeo Bhagat do lay down the proposition that even in cases of death the devolution of interest in the decree on the legal heirs is by operation of law within the meaning of Order 21, Rule 16. The two decisions referred to above are authoritative pronouncements of this Court that even in cases of death in course of the execution proceedings the proper provisions, under which the legal heirs and representatives of the deceased decree-holder can be 3rought on records of the case, are those of Order 21, Rule 16 and not Order 22, Rule 10. In my view, there is sufficient justification and force of logic in the two decisions referred to above, for, if, as was my initial reaction, the provisions of Order 22, Rule 10 of the Code could be brought to apply to the execution proceedings, there would be an inevitable danger of fraud being perpetrated by persons claiming to be either assignees from, or legal representatives of the deceased decree holder. And on the basis of an assignment by way of an oral gift, any person claiming to be such an assignee of the deceased decree-holder could, in spite of the imperative requirement of Order 21, Rule 16 that the assignment in such cases must be in writing, very well defeat such salutary provisions of law. The Legislature could not have so in-tended to make the law operative. It was, in the fitness of things, therefore, that in the proviso to Order 21, Rule 16 was added a sufficient safeguard and safety valve put upon fraud being perpetrated by any person claiming to be the assignee from the decree-holder -- in case when the decree-holder was alive and a claim was being made on the basis of even a written assignment, the law enjoined upon the person claiming to be such an assignee to proceed with the execution only with due notice of such an assignment and application to the transferor decree-holder. There is no doubt, therefore, in my mind that the matter in the instant case will have to be judged in the light of the provisions of Order 21, Rule 16 of the Code.

(4.) It is nobodys case that there has been any assignment in writing. All that opposite party No. 1 claims is that he is entitled to execute the decree in favour of the deceased Moinul Haque as he was an assignee of the same by a mere oral gift, The question arises: does Order 21, Rule 16 of the Code admit of any such claim being successfully made by any person The learned Subordiate Judge holds that, since opposite party No. 1 was a Muhammadan governed by the Muhammadan Law which permits an oral gift to be made by delivery of possession and since the decree was given possession of to opposite party No. 1, there was no necessity of complying with the provisions of Order 21, Rule 16 regarding the assignment being in writing. I do not think the reasoning is well founded. Order 21, Rule 16 of the Code expressly lays down that where the interest of any decree-holder in the decree is transferred by assignment in writing or by operation of law, the decree may be executed by such a person in whose favour the assignment has been made or on whom the interest has devolved by operation of law. It is not the case of opposite party No. 1 nor, for that matter, has the learned Subordinate Judge dealt with the case from that point of view, that there was any devolution of interest by operation of law. The claim simpliciter was on the basis of an assignment -- an assignment in the shape of an oral gift. True, under the Muhammadan Law oral gift with delivery of possession is permissible. But in construing the provisions of Order 21, Rule 16 of the Code dealing with matters of execution by assignees, it will not be the lex loci which will override the express statutory provisions. If the statute says that the claim can be enforceable only when an assignment is in writing, the claim cannot be allowed to succeed on the basis of the assignment not in writing. In that view of the matter, I feel, the contention of learned counsel for the petitioners that the court below has acted illegally in the exercise of its jurisdiction and that it had no jurisdiction to permit opposite party No. 1 to proceed with the execution on the basis of an assignment not in writing, is well founded in law.

(5.) In the result, therefore, this application must succeed. The rule is made absolute. But since no one has appeared to contest this application, there would be no order as to cost.