1980 Supreme(Cal) 405

High Court Of Calcutta
Amarendra Nath Sen, Murari Mohan Dutt
L.MULLICK AND CO. - Appellant
Versus
BINANI PROPERTIES P.LTD. - Respondent
Appeals 172  Of  1976
Decided On : 11/14/1980

A person claiming under the decree-holder can continue the pending execution proceedings under Section 146 of the CPC.

Headnote:

EXECUTION OF DECREE - TRANSFER OF DECREE - RIGHT TO EXECUTE DECREE - TRANSFER OF PROPERTY, WHETHER NECESSARY - SECTION 146, CPC - SUBSTITUTION OF NAME IN TABULAR STATEMENT - ORDER 21, RULE 16, CPC - APPLICATION FOR CONTINUATION OF PROCEEDINGS - WHETHER TENTATIVE OR FINAL - ORDER WITHOUT PREJUDICE - INTERPRETATION - RECTIFICATION OF ORDER OF AMALGAMATION - EFFECT - BONA VACANTIA - ESHEAT - AMENDMENT OF ORDER - WHETHER TAKES EFFECT FROM DATE OF ORIGINAL ORDER - AFFIDAVIT OF COMPETENCY - NECESSITY - DECREE FOR EVICTION - GROUNDS - REASONABLE REQUIREMENT FOR BUILDING AND REBUILDING - TRANSFER OF PROPERTY - EFFECT - NULLITY OF DECREE - SECTION 13 (2) OF THE WEST BENGAL PREMISES TENANCY ACT, 1956 - DIRECTION FOR POLICE HELP - ORDER 21, RULE 97, CPC.

Fact of the Case:

Binani Properties P. Ltd. obtained a decree for eviction of the appellant from the disputed property on the grounds of default in payment of rent and reasonable requirement for building and rebuilding. The said decree was affirmed in Appeal No. 226 of 1966. An application for leave to appeal to the Supreme Court was dismissed on July 22, 1968, and an application for special leave to the Supreme Court was also dismissed on November 4, 1968. The decree-holder, Binani Properties P. Ltd., put the said decree into execution on October 10, 1969. During the pendency of the said execution case, the company court by an order dated September 17, 1970, sanctioned a scheme of amalgamation of Binani Properties P. Ltd. with Binani Investment Co. P. Ltd., and ordered for the transfer of the entire assets and properties of the Binani Properties P. Ltd. to Binani Investment Co. P. Ltd. under Section 394 of the Companies Act, 1956. It was further ordered that the latter company, that is, the transferee-company, would be entitled to continue all pending proceedings initiated by or in the name of Binani Properties P. Ltd.

Finding of the Court:

1. The transferee of the decree, namely, the respondent, Metal Distributors Ltd., not having followed and complied with the provisions of Order 21, Rule 16 of the CPC, the respondent is not entitled to execute the decree for possession. 2. The respondent, the Metal Distributors Ltd., having acquired title to the disputed property may continue the pending execution against the appellants as a person claiming under Binani Properties P. Ltd., the original decree-holder, under the provision of Section 146 of the CPC. 3. The order granting leave to the respondent, Metal Distributors Ltd., to proceed with the execution was not a tentative order; it was a final order so far as the right of the respondent to proceed with or continue the execution proceedings was concerned. 4. The disputed property had passed to the transferee-company by virtue of the order passed by the company court under Section 394 (2) of the Companies Act, although the disputed property was not mentioned in the schedule to the order. 5. The order of rectification is virtually an order of clarification of the order passed under Section 394 (2) of the Companies Act. Such an order of rectification by way of clarification not having made any change in the order will take effect from the date the order was originally made. 6. The decree for eviction, the learned counsel submits, had, therefore, become a nullity and cannot be executed. 7. The decree was passed on August 10, 1966, that is, before Clause (f) of Section 13 (1) of the West Bengal Premises Tenancy Act, 1956, was amended and Clause (f) was split up into Clauses (f) and (ff) by the West Bengal Premises Tenancy (Second Amendment) Act, 1969. The unamended Clause (f) contained both the grounds of ejectment, namely, reasonable requirement for building and rebuilding and also for personal occupation of the landlord.

Issues: 1. Whether the transferee of the decree, Metal Distributors Ltd., is entitled to execute the decree for possession without complying with the provisions of Order 21, Rule 16 of the CPC? 2. Whether the respondent, Metal Distributors Ltd., can continue the pending execution against the appellants as a person claiming under Binani Properties P. Ltd., the original decree-holder, under the provision of Section 146 of the CPC? 3. Whether the order granting leave to the respondent, Metal Distributors Ltd., to proceed with the execution was a tentative order or a final order? 4. Whether the disputed property had passed to the transferee-company by virtue of the order passed by the company court under Section 394 (2) of the Companies Act? 5. Whether the order of rectification is virtually an order of clarification of the order passed under Section 394 (2) of the Companies Act? 6. Whether the decree for eviction had become a nullity and cannot be executed? 7. Whether the decree was passed on the ground of reasonable requirement for building and rebuilding and also on the ground of default in payment of rent?

Ratio Decidendi: 1. The right to execute a decree is a statutory right, and only the decree-holder can execute the decree, even after the transfer of the same and until and unless the name of the transferee is brought on the record as the decree-holder in accordance with the provisions of Order 21, Rule 16. 2. Section 146 of the CPC enables a person claiming under the decree-holder to continue the pending execution proceedings. 3. The order granting leave to the transferee of the decree to proceed with the execution proceedings is a final order so far as the right of the transferee to proceed with or continue the execution proceedings is concerned. 4. The disputed property had passed to the transferee-company by virtue of the order passed by the company court under Section 394 (2) of the Companies Act, although the disputed property was not mentioned in the schedule to the order. 5. The order of rectification is virtually an order of clarification of the order passed under Section 394 (2) of the Companies Act. Such an order of rectification by way of clarification not having made any change in the order will take effect from the date the order was originally made. 6. The decree for eviction had not become a nullity and can be executed.

Final Decision: The appeals are dismissed. The respondent will be entitled to amend the tabular statement by deleting the name of the decree-holder, Binani Properties P. Ltd., and, in its place, substituting the name of the respondent, Metal Distributors Ltd.