IMPORTANT POINTS
(1) Once legislative intent is clear and law is amended, then earlier position of law cannot be said to prevail post amendment.
(2) Nothing in Order XXI Rule 16 of CPC would affect provisions of Section 146 and transferee of right in property which is subject matter of a suit may apply for execution of decree without separate assignment of decree as required by law.

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 and Conciliation Act, 1996 (hereinafter referred to as the ‘A&C Act’). The significant aspect is the addition of the explanation to Order XXI Rule 16 of the CPC, which was added pursuant to the recommendation made by the Law Commission of India in its 54th Report on the CPC in 1973, which in turn was a sequitur to the conflicting views of the High Courts on the matter in issue.

The facts:

2. In order to appreciate 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 C.A. 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 C.A. 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 the Works for which they were to be paid monthly remuneration and hiring charges of certain equipment that was to be provided by the appellants herein. The appellants claim to have supervised the work of extension of runway on behalf of Shri S.N. Kanungo but apparently some part of their dues were not paid. Shri S.N. Kanungo is stated to have executed an Assignment Deed along with a cheque in favour of Mr. Prabhat Bhushan Kanungo for Rs. 1 crore as security on 27.10.1999 to secure payment of such dues. The claims were in respect of both the appellants.

4. It appears that some disputes arose between Shri S.N. Kanungo and respondent No. 1 which were referred to arbitration and an award was passed in his favour on 22.03.1999. Shri S.N. Kanungo received the money under the award on 28.01.2001.

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 p