Jugalkishore Saraf vs Raw Cotton Company LTD.

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

1954 Supreme(SC) 32

SUPREME COURT OF INDIA
S.R. DAS, BHAGWATI AND JAFER IMAM JJ.
Jugalkishore Saraf, Appellant
Versus
M/s. Raw Cotton Co. Ltd., Respondent.
Civil Appeal No. 212 of 1954.
7th March, 1955
Advocates appeared
Mr. R. Subramania Iyer and Mr. K. R. Choudhry, Advocates, for Appellant; Mr. H. J. Umrigar, Mr. J. B. Dadachanji and Mr. Ranjinder Narain, Advocates, for Respondent.

Advocates:
H.J.Umrigar, J.B.DADACHAN, K.R.CHAUDHARY, R.SUBRAMANIA IYER, RAJENDER NARAIN

Headnote:OBJECTION UNDER SECTION 47 - TRANSFEREE OF A DEBT - “SAVE AS OTHERWISE PROVIDED” - TRANSFEREE OF PROPERTY AFTER DECREE IS PASSED - Section does not operate to pass any future property — transfer of debt pending suit - “Judgment debt” — concept and meaning - In present or future — transfer or property
       -in objection under Section 47, the Court should decide all questions involving investigation of complicated facts or difficult of law
       -a transferee of a debt on which a suit was pending was entitled to execute the decree which was subsequently passed therein under this Section as a person claiming under the decree-holder, even though an application for execution by him would not lie under Order 21 Rule 16 - Jugalkishore Saraf v. Raw Cotton Co. Ltd., AIR 1955 SC 376. See also the decision in Zila Singh v. Hazari, AIR 1979 SC 1066 = (1979) 3 SCC 265.
       -it bars only the proceeding which would be obnoxious to some provision of the Code - Jugalkishore Saraf v. Raw Cotton Co. Ltd., AIR 1955 SC 376. It would mean that if the Code permits a proceeding to be taken or an application to be made by a party, then in absence of the provision to the contrary, this Section would enable any one claiming under such person as well to make the same applicable - Zila Singh v. Hazari, A.I.R 1979 SC 1066. If a transferee of the decree can avail himself of the provisions as contained under Order XXI Rule 16 by establishing that he is such a transferee he must only avail himself of that provision. But if he fails to establish his title as a transferee by assignment in writing or by operation of law within the meaning of Order XXI Rule 16 there is nothing in that provision which prohibits him from availing himself of Section 146 or the provision of that Section can be availed of by him.
       -the language of the Section is wide enough to include a transferee of the property after the decree is passed
       – Section 8 of the Act does not operate to pass any future property, for the section passes all interests which the transferor can “then”, i.e., at the date of transfer, pass. A book debt which was made the subject matter of the pending suit did not, for that reason, cease to be a book debt and, therefore, it was also transferred but no decree to be passed in respect of that book debt was in terms transferred – See decision in the suit Jugalkishore Saraf v. M/s Raw Cotton Co. Ltd, AIR 1955 SC 376 = 1955 SCA 440 = 1955 SCJ 371 = 195 SCR 1369 = 1955(1) Mad LJ (SC) 220.
       - a judgment debt or decree is not an actionable claim for no action is necessary to realize it. A decree to be passed in future also does not come as such within the definition of an actionable claim and an assignment or transfer thereof need not be effected in the manner prescribed by Section 130 of the Act – See decision Jugalkishore Saraf v. M/s Raw Cotton Co. Ltd., AIR 1955 SC 376 = 1955 SCA 440 = 1955 SCJ 371 = 1955 SCR 1369 = 1955(1) Mad LJ (SC) 220.

       – the section defines a “transfer of property” as an act by which the transferor conveys property in present or future. A transfer of a decree by assignment in writing may be effected by conveying the decree in present or in future to the transferee. But even for the transfer to operate in future the decree which is the subject matter of the transfer must be in existence at the date of transfer. The word “in present or in future” qualify the word “conveys” and not the word “property” in the section and it has been held that a transfer of property that is not in existence operates as a contract to be performed in the future which may be specifically enforced as soon as the property comes in to existence – See decision in the case of Jugalkishore Saraf v. Row Cotton Co. Ltd., AIR 1955 SC 376 = 1955 SCA 440 = 1955 SCJ 371 = 1955 SCR 1369 = 1955(1) Mad LJ (SC) 220.

Judgment

S. R. DAS J.: The facts leading up to this appeal are few and simple. Two persons named Mahomedali Habib and Sakerkhanoo Mahomedali Habib used to carry on business as merchants and pucca adatias in bullion and cotton at Bombay under the name and style of Habib and Sons. In 1948 that firm instituted a suit in the Bombay City Civil Court, being Summary Suit No. 233 of 1948, against the present appellant Jugalkishore Saraf, a Hindu inhabitant carrying on business at Bombay, for the recovery of Rs. 7,113-7-0 with interest at 6 percent per annum said to be due by him to the firm in respect of certain transactions in gold and silver effected by the firm as pucca adatias .

On 7-2-1949 when that summary suit was still pending a document was executed whereby it was agreed that the two partners would transfer and Messrs. Raw Cotton Company, Limited, (hereinafter called the respondent Company) would accept the transfer of inter alia , all book and other debts due to them in connection with their business in Bombay and full benefit of all secirities for the debts and all other property to which they were entitled in connection, with the said business. The respondent company did not take steps under O. 22, R. 10, Civil P. C. to get themselves substituted as plaintiffs in the place and stead of Habib and Sons, the plaintiffs on record, but allowed the suit to be continued in the name of the original plaintiffs.

Evidently, the two partners migrated from India to Pakistan and their properties vested in the Custodian of Evacuee Property. On 15-12-1949 a decree was passed in the summary suit for the sum of Rs. 8,018-7-0 for the debt and interest and the sum of Rs. 410 for costs of the suit, aggregating to Rs. 8,428-7-0, and for further interest at 4 per cent per annum from the date of the decree until payment. Habib and Sons being the plaintiffs on record the decree was passed in their favour.

2. On 11-12-1950 the Custodian of Evacuee Property, Bombay, informed the respondent company that by an order made on 2-8-1950 the Additional Custodian of Evacuee Property had confirmed "the transaction of transfer" of the business of Habib and Sons to the respondent company.

3. On or about 25-4-1951 the respondent company presented before the Bombay City Civil Court a tabular statement purporting to be an application for execution under O. 21, R. 11, Civil P. C. In the last column of the tabular statement, under the heading "The mode in which the assistance of the Court is required", the respondent company prayed that the Court "be pleased to declare the Applicants the assignees of the decree as the decretal debt along with other debts had been transferred by the plaintiffs to the Applicants by a deed of assignment dated 7-2-1949 which was confirmed by the Custodian of Evacuee Property, Bombay, and order them to be substituted for the plaintiffs."

There was, in that column, no specification of any of the modes in which the assistance of the Court might be required as indicated in Clause (j) of O. 21, R. 11 of the Code. On 10-5-1951 the Bombay City Civil Court issued a notice under O. 21, R. 16 of the Code to Habib and Sons, who were the decree-holders on record, and Jugalkishore Saraf, who was the defendant judgment-debtor, requiring them to show cause why the decree passed in the suit on 15-12-1949 in favour of the plaintiffs and by them transferred to the respondent company, should not be executed by the said transferees against the said defendant judgment-debtor.

The defendant judgment-debtor showed cause by filing an affidavit affirmed by him on 15-6-1951. Amongst other things, he denied that the document in question had been executed or that the document transferred the decree to the respondent company.

4. The matter was tried on evidence and the execution of the document was proved by the evidence of an attesting witness which has been accepted by the executing Court. The executing Court, however, rejected the second contention and made the no

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