Content Provider | Supreme Court of India |
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e-ISSN | 30484839 |
Language | English |
Access Restriction | NDLI |
Subject Keyword | Code of Civil Procedure |
Content Type | Text |
Resource Type | Law Judgement |
Jurisdiction | India |
Act(s) Referred | Code of Civil Procedure, 1908 (5 of 1908) |
Case(s) Referred | Referred Case 0 |
Case Type | Appeal |
Court | Supreme Court of India |
Disposal Nature | Appeal Allowed |
Headnote | Code of Civil Procedure, 1908 – Or.XXI, r.16 – Execution of Decrees and Orders – Application for execution by transferee of decree – Addition of the Explanation to Or.XXI, r.16 of the CPC, pursuant to recommendation made by the Law Commission of India in its 54 th Report on the CPC in 1973 – The Explanation was inserted by Act 104 of 1976 [Code of Civil Procedure (Amendment) Act, 1976] w.e.f. 01.02.1977 – In Jugalkishore Saraf case, it was held that Or.XXI, r.16 contemplates the actual transfer of the decree by an assignment in writing executed “after the decree is passed” and thus, while a transfer of or an agreement to transfer a decree that may be passed in 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 Or.XXI, r.16 – Whether the subsequent amendments to Or.XXI, r.16 changed the position of law as laid down in Jugalkishore Saraf case – Held: 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 u/s.146 CPC – The Law Commission recommended amending Or.XXI, r.16 to clarify that it does not affect the provisions of s.146 CPC and that a transferee of rights in the subject matter of the suit can obtain execution of a decree without separate assignment 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 – The objective of amending Or.XXI, r.16 by adding the Explanation was 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 – The Explanation clearly stipulates that nothing in Or.XXI, r.16 of the CPC would affect the provisions of s.146 and the transferee of the right in property which is subject matter of a suit may apply for execution of the decree without separate assignment of the decree as required by law – Decree. |
Judge | Hon'ble Mr. Justice Sanjay Kishan Kaul |
Neutral Citation | 2021 INSC 655 |
Petitioner | Vaishno Devi Construction Rep. Thr. Sole Proprietor (d) Thr. Lrs & Anr. |
Respondent | Union Of India & Ors. |
SCR | [2021] 10 S.C.R. 59 |
Judgement Date | 2021-10-21 |
Case Number | 18278 |
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