Decided on October 30,1970

Karuppa Goundar Appellant
Chinna Angappa Goundar Respondents


R. Sadasivam, J. - (1.) PETITIONER is the second defendant in O.S No. 235 of 1947 on the file of the Court of the District Munsif Tiruppur. The respondent Chinna Angappa Gounder filed I.A. No. 1809 of 1966 in the said suit as the representative -in -interest of the first defendant in the suit under Sections 146 and 151 of the Code of Civil Procedure, to amend the compromise decree and it is against the order allowing the amendment, the petitioner -second defendant has come forward with this Civil Revision petition.
(2.) UNFORTUNATELY , the compromise entered into between the parties in the suit was not made part of the decree. On account of this defect, the decree drafted in the suit referred to the common cart track as proceeding also to the south of survey field No. 295 which is not mentioned in the compromise. The learned District Munsif in allowing the amendment has merely brought the decree in accordance with the compromise in the suit. Sri K. Ramaswami appearing for the petitioner is not able to show how this is wrong. But the contention of Sri K. Ramaswami is that the respondent is not entitled to invoke Section 146 of the Civil Procedure Code to have the compromise decree amended as prayed for by him. He relied on the decision in Bhandari v. Ramachandra, (1907) 17 M.L.J. 391 that a decree -holder alone is entitled to execute a decree. The plaintiff in that case assigned the decree to be passed in his favour to another, but the suit was allowed to proceed in the name of the assignor only. It was held that the assignee was not entitled to execute the decree as the transferee decree -holder within the meaning of Section 232 of the old Code of Civil Procedure. It was pointed out in that decision that a 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 should be noted that Section 146 of the Code of Civil Procedure is a new provision introduced under the Civil Procedure Code of 1908 and this came into existence subsequent to the above decision. It is true in Sampath Mudaliar v. Sakunthala Ammal, I.L.R. (1964) Mad. 363 :, (1964) 2 M.L.J. 563, Jagadisan, J., has taken a similar view and he has observed that the true principle is that a. decree cannot be executed by anybody other than the decree -holder, except by an assignee who satisfies the requirements of Order 21, Rule 16, and that Section 146 of the Civil Procedure Code cannot have the effect of overriding the provisions of Order 21, Rule 16, Civil Procedure Code. It is true that in a case falling under Order 21, Rule 16, Civil Procedure Code, there will be no scope for relying on Section 146 of the Code of Civil Procedure, which specifically provides for its being invoked only in so far as there is no other provision in the Code -relating to the matter. But the learned Judge has proceeded to find that after a decree had been passed, Order 21, Rule 16, Code of Civil Procedure, cannot be evaded by resorting to Section 146 of the Code. But Kailasam, J., in Ponniah Pillai v. Natarajan Asari : (1967) 2 MLJ 281 , has taken a different view. He has held in this decision that a person who claims to be entitled to the benefit of the decree, but who does not answer the description under Order 21, Rule 16, Civil Procedure Code, is not precluded thereunder from making an application which the person from whom he claims could have made, as provided under Section 146 of the Code. This decision has been followed by Venkataraman, J., in Rengaswami v. Rengammal : AIR 1969 Mad 271 .
(3.) THE Supreme Court in Jugulkishore Saraf v. Raw Cotton Co., Ltd. : [1955] 1 SCR 1369 , has discussed the precise scope and ambit of Section 146 and Order 21, Rule 16, Civil Procedure Code. The Supreme Court has pointed out that a person may 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 which case he falls within the scope of Order 21, Rule 16 of the Civil Procedure Code, and if he is not such a transferee, he may avail himself of the provision under Section 146, if all the conditions are fulfilled. Kailasam, J., has referred to this observation of the Supreme Court that the transferees who do not fall under Order 21, Rule 16 of the Civil Procedure Code may avail themselves of the provisions of Section 146, Civil Procedure Code. But as already pointed out, Jagadisan, J., took a different view on the ground that the Supreme Court did not hold that after the passing of the decree any transfer, though not in the form of transfer of the decree, would yet enable the transferee, to proceed under Section 146.;

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