BHAGWANT BALAJI RAO Vs. RAJARAM SAJNAJI

JUDGEMENT

(1.) This is an appeal against the order of the District Judge of Ratnagiri reversing the order of the Subordinate Judge of Deorukh in Miscellaneous Application No. 29 of 1939 and allowing the application of an assignee of a decree-holder to have the assignment recorded and for leave to execute the decree.

(2.) One Murari obtained a decree in Suit No. 102 of 1935 against the opponents on March. 29, 1935, and he thereby obtained a declaration, that he was the owner of 2 1/3 pies share in the taxim out of dhada No. 48 in the village of Angavali and that he was also entitled to Rs. 150 for the unpaid purchase money and to Rs. 226-7-5 for half the costs of the suit. On November 1, 1938, he assigned his right under the decree for the recovery of Rs. 150 for the unpaid purchase money and for the costs to one Rajaram who filed the present Miscellaneous Application No. 29 of 1939, In a subsequent suit, No. 317 of 1935, for partition to which Murari was a party no share was assigned to Murari. Thereupon Rajaram the assignee from the original decree-holder Murari filed the present application for recording the assignment and for leave to execute the decree. The application was purported to be made under Order XXI, Rule 16, of the Civil Procedure Code. The executing Court was of opinion that such an application was not competent, following the judgment of the Calcutta High Court in Radha Nath Das V/s. Produmna Kumar Sarkar [1989] 3 Cal 825. On merits the Court held that the darkhastdar being a transferee of a part of the decree was not entitled to execute the portion transferred to him. On both these grounds the application was dismissed. The assignee thereupon filed an appeal in the District Court of Ratnagiri, and the learned District Judge who heard the appeal held that in effect the applicant was a transferee of the whole of the decree and therefore could maintain the application. It does not appear on. record whether the question as to the maintainability of the application was argued before the learned District Judge, but having regard to the fact that the learned District Judge allowed the application, the objection does not appear to have been pressed before him. Accordingly the learned District Judge reversed the order of the lower Court and directed that the assignment should be recorded and the applicant granted leave to execute the decree in Regular Suit No. 102 of 1935 as an assignee. It is against that order that the judgment-debtors have come in appeal.

(3.) With regard to the point regarding the validity of the assignment, it seems to us that the view taken by the learned District Judge is correct. The assignment was in effect of the whole of the executable part of the decree. The decree contained a declaration of Murari's right to a share in the taxim and enabled him to recover Rs. 150 as part of the unpaid purchase money and costs. In transferring his right to the darkhastdar with respect to Rs. 150 and costs, the decree-holder has in effect assigned the whole of his decree so far as it was executable. In fact in the suit for partition, No. 317 of 1935, Murari was not assigned any share in the taxim. In our opinion, therefore, the objection based on the assignment of the decree being irregular fails.