9911796707
Advanced Search 
TMI Blog2021 (10) TMI 984X X X X Extracts X X X X X X X X Extracts X X X X ..... te the controversy, relevant facts are being set out. On 29.12.1995, a contract was awarded by the Union of India to one Surendra Nath Kanungo @ S.N. Kanungo for executing the work of extension of runway at Port Blair Airport (hereinafter referred to as 'Works'). Shri S.N. Kanungo passed away in the year 2012 and is represented by legal heirs in the present proceedings as respondent Nos.2 to 7, while respondent No.1 is the contract awarding authority. 3. Shri S.N. Kanungo entered into an arrangement whereby the Works were assigned to Vaishno Devi Constructions, a sole proprietorship concern of Prabhat Bhushan Kanungo (appellant No.1 in CA No. 18278 of 2017). It appears that appellant No.2, Surya Prakash Kanungo was also taking care of the work. A different part of the work was assigned to BeeDee Builders, a sole proprietorship of Swapna Das and, once again, apparently her husband Bijoy Kumar Das was playing a role in executing the Works as the said two parties are impleaded as appellant Nos.1 and 2 in CA No. 18279/2017. Shri S.N. Kanungo was a special class contractor and it appears from the case set up by the appellants that they were to act on behalf of S.N. Kanungo to carry out ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the appellants in the two appeals before us came into the proceedings by filing objections in the form of an application under Section 47 read with Order 22 Rules 1&2 of the CPC read with Sections 2(1)(g) and 36 of the A&C Act. 8. The claims made by the appellants were on the basis of an assignment made by Shri S.N. Kanungo and, thus, sought to keep any order for release of the amount in abeyance in full or in part to protect their interests. It appears that the prayer for interim relief did not succeed as the applications were dismissed on 08.04.2016.Ultimately on 26.12.2016, both sets of objections claiming a right in the decretal amount were also rejected by the executing court on the basis that the Assignment Deed and cheque had not been proved in those proceedings to establish the fact of assignment. It may, however, be noted that there was no trial in this matter before the executing court. 9. The aforesaid order was then sought to be assailed before the Calcutta High Court by filing a civil revision petition which was dismissed vide impugned judgment dated 13.02.2017. On the SLP being preferred, notice was issued on 17.04.2017 and a direction to maintain status quo wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... required by this rule.]" 12. It may be observed that the Explanation was inserted by Act 104 of 1976 (hereinafter referred to as the 'Code of Civil Procedure (Amendment) Act, 1976') w.e.f. 01.02.1977 and has a material bearing in the conspectus of the respective arguments. The recourse to Section 47 of the CPC in the application arises from this provision specifying the questions to be determined by the court executing a decree, and it reads as under: "47. Questions to be determined by the Court executing decree. -(1) All questions arising between the parties to the suit in which the decree was passed, or their representatives, and relating to the execution, discharge or satisfaction of the decree, shall be determined by the Court executing the decree and not by a separate suit. [***] (3) Where a question arises as to whether any person is or is not the representative of a party, such question shall, for the purposes of this section, be determined by the Court. [Explanation 1.-For the purposes of this section, a plaintiff whose suit has been dismissed and a defendant against whom a suit has been dismissed are parties to the suit. Explanation II-(a) For the purposes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssignment in writing executed "after the decree is passed". Thus, while a transfer of or an agreement to transfer a decree that may be passed in the future may, in equity, entitle the intending transferee to claim the beneficial interest in the decree after it is passed, such equitable transfer does not relate back to the prior agreement and does not render the transferee a transferee of the decree by an assignment in writing within the meaning of Order XXI Rule 16 of the CPC. 17. Learned counsel for the appellants sought to invite our attention to certain other paragraphs in support of the proposition they seek to advance, more specifically paras 52, 54, 56 and 59. Earlier judicial precedent of the Bombay High Court and the Calcutta High Court were referred to for the proposition that Order XXI Rule 16 was not intended to apply to cases where serious contest arose with respect to the rights of persons to an equitable interest in a decree. Two views were mentioned, i.e., the strict view about the requirement of existence of a decree; and the other view based on equity, when an agreement has been entered into in writing albeit prior to the decree which may be optional for the court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... law in execution proceedings, as Section 47 of the CPC authorised the Court executing the decree to decide all questions arising therein and relating to execution of the decree, as it facilitates adjudication and obviates the necessity of filing a separate suit for determination of the same. 19. A distinction was made in respect of transfer of an actionable claim within the meaning of Section 3 of the Transfer of Property Act, 1882. In cases of transfer of book debt or property coming within the definition of actionable claim, the same necessarily involved transfer of a transferor's right in a decree which may be passed in his favour in a pending litigation and the moment a decree is passed in his favour by the court of law, that decree is automatically transferred in favour of the transferee by virtue of the assignment in writing already executed by the transferor. The book debt does not lose its character of a debt by its being merged in the decree and without anything more, the transferee is entitled to the benefit of the decree passed by the court in favour of the transferor. The transferee of an actionable claim would, thus, step into the shoes of the transferor and claim to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... only aspect which we have to consider is whether that amendment made any difference to the legal position as enunciated in the said judgment. 24. It is an admitted position that the explanation was added to Order XXI Rule 16 which did not exist earlier, pursuant to the recommendations made by the Law Commission of India in its 54th Report on the Code of Civil Procedure, 1908. The Explanation was so added due to conflicting High Courts' decisions on the question, i.e., whether a person who does not have a written assignment of the decree, but who has succeeded to a decree holders' right, is entitled to such decree under Section 146 of the CPC. 25. In Penniah Pillai v. T. Natarajan Asari AIR 1968 Mad 190 the Madras High Court decided this question in the affirmative. The high court gave liberty to the transferees to avail of Section 146 if they did not fall within the provisions of Order XXI Rule 16 of the CPC and, thus, would cover transferees of a property after the decree was passed. In this behalf the learned Judge disagreed with an earlier judgment of the Madras High Court in K.N. Sampath Mudaliar v. Sakunthala Ammal 1964 2 MLJ 563 opining that Section 146 of the CPC could no ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
