HOWARD C.J.—Rajapakse v. Bastion et al.
1940*Present: Howard C.J. and Cannon J.
RAJAPAKSE v. BASTIAN et al.
62—D.'C. Negombo, 11,095.
Decree—Assignment of decree—Application for substitution—Wo applicationfor execution—Civil Procedure Code, s. 339.
Where a decree has been transferred an application for substitutionof the transferee’s name for that of the transferor in the record cannot bemade under section 339 of the Civil Procedure Code apart from anapplication for execution.
A PPEAL from an order of the District Judge of Negombo.
A. Rajapakse for the petitioner, appellant.
Cyril E. S. Perera (with him S. W. Jayasuriya), for the first and seconddefendants, respondents.
Cur. adv. vu'lt.
December 4, 1940. Howard C.J.—
This is an appeal by the petitioner from an order made on April 24,1940, by the District Judge of Negombo, dismissing the petitioner’sapplication to have himself substituted in place of the plaintiff in case
C. No. 11,095, Negombo, and as such substituted plaintiff to proceedwith the action. In this action decree was entered for the plaintiffwho is the seventh respondent to the appeal on September 22, 1939,for the sum of Rs. 1,575 together with further interest and costs jointlyand severally against the first to third defendants-respondents to thisappeal. Subsequently on October 4, 1939, by consent, the defendants-respondents were given a year’s time to pay and settle the plaintiff’sclaim and costs, if in the meantime, they paid instalments of Rs. 75 amonth. By deed No. 131 dated February 10, 1940, attested by a NotaryPublic, the plaintiff-respondent assigned his right in the said decreeto the petitioner-appellant. In' dismissing the application the learnedDistrict Judge has held that such application was untenable in forminasmuch as it was merely an application for substitution unaccompaniedby an application for execution of the decree. He further held that anapplication for execution would be premature as the defendants had timetill October, 1940, to satisfy the decree.
The decision of the learned District Judge was based on an interprets–tion of section 339 of the Civil Procedure Code for which he purportedto find authority in the judgment of Hearne J. in the case of Latiff v.Seneviratne1 and in that of Garvin S.P.J. in the case of KailasamPillai v. Palaniappa Chettiar*. In Latiff v. Seneviratne it wascontended by the appellant that a sale of immovable property orderedby the Court in execution of a money decree on an application forexecution by the executors of the second plaintiff was invalid becausethere was not a separate and distinct application for substitution. Thiscontention was not accepted by the Court. Qn (he other hand it cannotbe regarded as an authority for the proposition that an application forsubstitution of the transferee’s name for that of the transferor in therecord of the decree cannot be made under section 339 of the CivilProcedure Code apart from an application for execution. In KailasamPillai v. Palaniappa Chettiar (supra) it was held that where, after adecree had been assigned in writing, it is seized by a creditor of the»40 N. L. R. 141.
HOWARD CJ.—Rajapakse v. Bastion et al.
assignor, the creditor is not entitled to priority merely becMise theassignee has made no application for execution under section 339 of theCivil Procedure Code. This case is an authority for the propositionthat a transferee of a decree is only bound to proceed under section 339if he desires execution of the decree. An assignee, as pointed out byGarvin J., who does not promptly proceed under section 339 imperilshis interests in that the decree may be executed by the original plaintiff orby the application of a subsequent assignee. This case, also, cannot beregarded as an authority for the contention put forward by the respond-ents. In fact scrutiny of the material facts referred to in the judgmentof Garvin J., as set out by Akbar J., indicates that the motion made onMarch 1, 1932, by the appellant in that case was for substitution andnot for execution. This motion was apparently allowed. The fact thatno comment was made by the Court on the validity of such motionlends some support to the contention that an application for substitutionas apart from execution will lie. Our attention has also been invitedby Counsel for the appellant to the case of Fernando v. Mendis1 in whichafter decree nisi had been entered in an action the plaintiff assigned thedecree and the assignee applied to 'have himself substituted as plaintiffafter the decree had been made absolute. It was held that the assign-ment was good and that the assignee was entitled to make the applicationunder section 339 of the Civil Procedure Code. The application in thiscase was for substitution only and was unaccompanied by an applicationfor execution.
In Ceylon there appears to be an absence of authority on the questionas to whether an application merely for recognition by the Court of thetransferee as such will lie. This absence of authority is, however,compensated by the fact that the Indian Courts provide numerousdecisions on the interpretation to be given to the corresponding provisionin the Indian Civil Procedure Code. The wording of Order 21, R. 16of tlie Indian Civil Procedure Code is very similar to that of section 339of the Ceylon Code. It is true that in the Indian rule the words “ thetransferee’s name may be substituted for that of the transferor oh therecord of the decree ” are missing. I do not, however, consider that suchomission affects the question as to whether an application under section339 merely for substitution will lie. Numerous decisions of the IndianCourts have answered this question in the negative. Thus in DevrajMultani Sahai v. Fatehchand Ramchand' it was held that an applicationby a transferee to be brought on the record without asking for executionof .the decree is not an application in accordance with law, as it is not anapplication for execution of the decree ; that is to say an applicationsetting the Court in motion that the decree be executed in any mannerset out in the last column of the prescribed form. In coming to thisdecision the Court followed Ramachandra Aiyer v. Subramania Inthat case Sir Bhashyam Aiyangar held that the transferee of a decreecannot make an application merely for recognizing him as a transferee,that there is no provision of law requiring the Court to recognize the•validity of a transfer before the transferee has actually applied for execu-tion and that the only application which the transferee can make is an
1 2 7 N. L. It. 143.« (1933) A. I. JR. Sind 341.
s (1903) 14 M. L. J. 393.
HOWARD C.J.—Rajapatcse u. Bastion et al.
application for execution. The case of Devraj Multani Sahai v. Fateh-chand Ramchand (supra) was followed in Mt. Memoo Muhammad Ismail v.Muhammad Sidik Pir Muhammad'. In this case it was held that anapplication made in the form of an execution application asking for theassignee to be brought on the record and not making any other prayeris not an application for execution made in accordance with law : andthere is nothing in Order 21, R. 16 or any other rule of the Civil ProcedureCode to require a transferee of a decree to apply for his name beingbrought on the record. The only possible application he can make isone for the execution of the decree. In Baij Nath and another v. RamBharos ! the application was by the representatives of a deceased decree-holder to be brought on the record in the latter’s place and that executionmight be proceeded with. The Court held that inasmuch as this was nota fresh application for execution it was in order and execution mightproceed. In Akhoy Kumar Talukdar v. Surendra Lai Pal' it was heldthat on the death of the applicant for execution it is open to legalrepresentatives to apply immediately for carrying on the proceedingsin execution of the decree or to apply for fresh execution under O. 21,R. 16. It is not necessary for them nor is it competent to make anapplication for substitution and therefore an order for substitutionif made cannot have the effect of continuing the application made by thepredecessor. In Mira Rowther v. Muhammad Ismail and others' it washeld that an application by the assignee to recognize him as an assigneeof the decree-holder and for transmission of the decree from the smallcause side to the original side for execution is a petition for execution.
Summarizing the principle formulated in the various Indian decisionscited in this judgment it would appear that an application made merelyfor the assignee to be brought on the record without any other prayerwill not lie. Such application must ask for execution of the decree,that is to say an application setting the Court in motion for executionin one of the modes prescribed by law.
In this case the appellant in fiis petition prayed that he might besubstituted in place of the plaintiff and as such substituted plaintiff beallowed to proceed on with this action. At the hearing, the appellant’sCounsel stated that the application was for substitution and that he wasnot asking for execution, jlnasmuch as the decree-holder had notapplied for execution there was no question of carrying on with proceed-ings started by him. The question for decision, therefore, is whetherthe petition in this case can be regarded as an application for execution.Such an application must specify the mode in which the assistance ofthe Court is required. It must ask for some relief. Can it be said that■ the words in the petition “ and as such substituted plaintiff be allowedto proceed on with the action ” ask for assistance or relief ? In view ofthe fact that there had been no previous application for execution in thiscase I do not think that such a meaning can be given to these words.In these circumstances the decision of the District Judge was right.The appeal fails and is dismissed with costs.
Cannon J.—I agree.
3 (1996) A. I. R. Calcutta 957.
* (1933) A. I. R. Madras 797
(1935) A. J. R. Sind 26.
(1927) A. I. R. AUnhabad 165.
RAJAPAKSE v. BASTIAN et al