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TMI Blog2021 (10) TMI 984X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 146 of the CPC. The objective of amending Order XXI Rule 16 of the CPC by adding the Explanation was to deal with the scenario as exists in the present case, to avoid separate suit proceedings being filed therefrom and to that extent removing the distinction between an assignment pre the decree and an assignment post the decree - Once the legislative intent is clear, and the law is amended, then the earlier position of law cannot be said to prevail post the amendment and it is not in doubt that the present case is one post the amendment. Appeal allowed. - CIVIL APPEAL NO.18278 OF 2017 C.A. No.18279/2017 - - - Dated:- 21-10-2021 - Sanjay Kishan Kaul And B. R. Gavai, JJ. JUDGMENT SANJAY KISHAN KAUL, J. 1. The contours of the legal controversy which arise for consideration in the present appeal emanate from the plea of the appellants claim based as an assignee of the decree holder in terms of Order XXI Rule 16 of the Code of Civil Procedure, 1908 (hereinafter referred to as the CPC ) in their application filed under Section 47 of the CPC by taking recourse to Section 146 of the CPC read with Section 2(1)(g) of the Arbitration Conciliation Act, 1996 (h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .2001. 5. Another reference was made in respect of another set of non- payments claimed by Shri S.N. Kanungo from respondent No.1.The dispute was referred to the sole arbitration of Shri T.K. Mishra, who passed an award in favour of S.N. Kanungo on 31.10.2006. Respondent No.1 filed proceedings before the High Court of Calcutta to set aside the award under Section 34 of the A C Act. The proceedings succeeded in terms of an order of the learned single Judge of the High Court dated 28.09.2007. On appeal being preferred before the Division Bench of the High Court, the judgment of the learned single Judge was reversed by a judgment dated 03.03.2008 and the appeal was allowed. 6. Shri S.N. Kanungo, in order to recover the amount, filed an execution case before the District Judge, Port Blair, being Other Execution Case No.01/2008.During the pendency of the execution proceedings, respondent No.1 filed an SLP in the Supreme Court, being SLP(C) No.21507/2008, challenging the judgment of the Division Bench dated 03.03.2008 and seeking stay of the execution proceedings. Notice was issued and stay of execution proceedings was granted in his favour. During the pendency of the SLP, Shri S.N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , claiming that Shri S.N. Kanungo voluntarily executed an assignment deed on 27.10.1999, which is a document in writing, while simultaneously issuing a cheque as security. 11. Order XXI of the CPC is titled as Execution of Decrees and Orders . Rule 16 of Order XXI deals with application for execution by transferee of decree and reads as under: Order XXI Execution of Decrees and Orders .... .... .... .... 16. Application for execution by transferee of decree.-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 by assignment in writing or by operation of law, the transferee may apply for execution of the decree to the Court which passed it; and the decree may be executed in the same manner and subject to the same conditions as if the application were made by such decree-holder: Provided that, where the decree, or such interest as aforesaid, has been transferred by assignment, notice of such application shall be given to the transferor and the judgment-debtor, and the decree shall not be executed until the Court has heard their objections (if any) to i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hen the proceeding may be taken or the application may be made by or against any person claiming under him. 14. It was, thus, the case of the appellants that their claim raised a question to be determined by an executing court within the parameters of Section 47 of the CPC in the context of the appellants claiming rights under the assignment of Shri S.N. Kanungo (as per Section 146 of the CPC). Section 2(1)(g) of the A C Act being part of the definition clause reads as under: 2. Definitions. - (1) In this Part, unless the context otherwise requires,- .... .... .... .... .... (g) legal representative means a person who in law represents the estate of a deceased person, and includes any person who intermeddles with the estate of the deceased, and, where a party acts in a representative character, the person on whom the estate devolves on the death of the party so acting; 15. The provisions of the CPC were thus sought to be made applicable to these proceedings for execution of an award which had culminated in a decree in the capacity of an assignee/representative to claim from Shri S.N. Kanungo on account of the assignment. 16. In the conspectus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ee which is the subject matter of transfer must be in existence as on the date of the transfer. The words in present or in future qualify the word conveys and not the word property in Section 5 and would, thus, not operate to a decree which would come into existence in the future. Such a decree could not be said to be transferred by an assignment in writing and the matter resting merely in a contract to be performed in the future which may be specifically enforced as soon as the decree was passed would be no transfer automatically in favour of the transferee of the decree when passed. The discussion ends with the opinion that any warrant for importing this equitable principle while construing the statutory provision enacted under Order XXI Rule 16 of the CPC would not be appropriate as it does not prescribe any mode in which such an assignment in writing has to be executed in order to effectuate a transfer of a decree. 18. The Supreme Court noticed that the High Court of Calcutta in Purna Chandra Bhowmick v. Barna Kumari Devi AIR 1939 Cal 715 had applied the equitable principle and held that the plaintiff in whose favour the defendant had executed a mortgage bond assigning ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the Assignment Deed itself is a disputed document which had not seen the light of the day for 17 years till 2016, and did not find a mention in the appellants legal notices. The appellants could have taken recourse to the Assignment Deed when an award was delivered in favour of late Shri Surendra Nath Kanungo on 22.03.1999. The cheque given as a security could have been encashed when the awarded money was paid to Shri S. N. Kanungo in 2001. The appellants took no steps in pursuance of that award but have raised the issue only at the stage when the second award had been made in 2006. Notably, the second award was confirmed by the Supreme Court as well. The appellants were not the legal representatives of Shri S.N. Kanungo, but at best that was an independent claim that could be adjudicated in appropriate civil proceedings. The decree not being in existence, the respondent claimed they were fully covered by the judgment in Jugalkishore Saraf (supra) and that the amendments to Order XXI Rule 16 would not change the position of law as laid down therein. 22. It was pleaded that the appellants were amongst such persons who were engaged by Shri S.N. Kanungo and had been paid thei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... signment of the decree. The objective appears to be to not have multifarious proceedings to determine the issue of assignment, but to determine the issue of assignment in the execution proceedings itself. 26. In the conspectus of the aforesaid we are of the view that the objective of amending Order XXI Rule 16 of the CPC by adding the Explanation was to deal with the scenario as exists in the present case, to avoid separate suit proceedings being filed therefrom and to that extent removing the distinction between an assignment pre the decree and an assignment post the decree. Thus, what has been discussed even in the judgment in Jugalkishore Saraf (supra) as a view based on the equitable principle was sought to be incorporated in Order XXI Rule 16 of the CPC by adding the Explanation, something which had not been done earlier. Once the legislative intent is clear, and the law is amended, then the earlier position of law cannot be said to prevail post the amendment and it is not in doubt that the present case is one post the amendment. 27. We may further add that while considering the divergent views of the High Courts, the Law Commission took note of the fact that two diffe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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