L.C. Adami, J.

1. It appears that one Debi Dutt, a co-sharer landlord brought a suit for his own share of the rent under S. 148-A of the Bengal Tenancy Act. During the pendency of the suit and before the decree he transferred all his fights in the land, rent of which was sued for, to the present respondent. That was on the 20-6-1918. In the kobala it was mentioned that he also transferred all arrears of rent and all his other interests. The respondent did not bring his name on to the record but allowed the suit to proceed with Debi Dutt as plaintiff, and Debi Dutt on 25-7-1918, obtained a decree in his own name. Subsequently the respondent applied for execution of that decree relying on the transfer by kobala on 20-5-1918. Objection was made in the execution Court on grounds but the only ground with which we have to deal now is that the respondent had no right to make the application since the decree obtained by Debi Dutt had not been transferred to him. Both the lower Courts have held that the application could be made by the respondent as transferee of the decree. The Munsif held that the respondent purchaser must be considered in equity the assignee of the decree and as such he was entitled to execute it. The learned Dt. Judge upheld this view of the case. It is now objected before us that there was no transfer of the decree and therefore the respondent could not make any application under O. 21, R. 16, C. P. C.

2. The question we have to decide is whether when the respondent made his purchase of the interest of Debi Dutt during the pendency of the rent suit and no mention was made in the deed of transfer of any decree, it could be held that the decree was transferred to the respondent; all that was transferred was an actionable claim. The Courts below as shown above have held that in equity it must be held that the transfer amounted to a transfer of the decree but such cases as have been decided on the subject are in favour of the appellant and against the respondent. The cases which the appellant has relied on and which seem to settle the law which has been followed in India on the point are Dost Muhammad v. Altaf Hussain Khan (1907) 17 I.C. 512, Basroor Vittil Bhandari v. Ramachandra Kamthi (1907) 17 Mad. L. J. 391=2 M. L. T. 197 and Peer Mahommad Rowthen v. Raruthan Ambalam (1914) 30 I. C. 831.

3. In all these cases it has been held that a transfer of property during the pendency of a suit will not entitle the purchaser to apply for the execution of the decree unless he has taken steps to have his name substituted in the suit in the place of his vendor. It is argued on the side of the respondent that S. 146 of the Code of Civil Procedure gave a right to the respondent to make his application but it is to be noticed that that general section is subject to any special provision there may be in the Code of Civil Procedure.

4. The section begins with the words "save as otherwise provided by this Code" and R. 16 of O. 21 is clearly a provision to which S. 146 will be subject. R. 16 only applies 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, and the words "interest of the decree-bolder in the decree" do not mean an interest such as the respondent claims in the present case but relate to a case where there are several decree-holders and one of them applies to execute the decree. It seems quite clear that according to the law laid down in the Courts in India, the contention of the appellant must succeed and that the appeal must be allowed.

5. I would therefore allow the appeal with costs.

Bucknill, J.:-

6. I must admit that I am not altogether very satisfied with the law as laid down by the three decisions which have been quoted by the learned Vakil for the appellant, but they are undoubtedly in his favour and no contrary authority of any cogency has been brought to our notice. It is quite explicitly laid down that the purchase of an interest in a future decree not yet granted cannot, when and if the decree is actually granted, place the assignee in a position to enable him to take any advantage of the provisions of O. XXI, R. 16 of the Civil Procedure Code.

7. The Dt. Judge of Gaya and the Munsif, both, and I think not unnaturally, thought that the out-and-out purchase made by the assignee hereof all the property and rights which the assignor had in the estate concerned constituted even in respect of an executory interest an equitable property in the future decrees which would enable him to come in under the provisions of O. XXI, R. 16 which I have mentioned above but unfortunately it does not seem that the cases to which I have referred were quoted to either of the Courts below or I think that otherwise they might have come to a contrary opinion.

8. I think that it is perhaps a pity that the law appears to be as it is and it may be that later decisions will amplify what has already been stated with regard to the position, but as it does not seem to me that it would be right for me to put myself in opposition to what has already been held by so many learned Judges, I therefore do not feel that I can disagree.