1979 Supreme(Cal) 58

High Court Of Calcutta
Anil Kumar Sen, B. C. Chakrabarti
A.S.MALLICK - Appellant
Versus
BOARD OF TRUSTEES FOR THE PORT OF CALCUTTA - Respondent
Civil Revn 2494  Of  1978
Decided On : 02/16/1979

The merger of interests of the decree holder and the judgment debtor in the same person results in the extinguishment of the decree.

Headnote:

DECREE EXTINGUISHMENT - MERGER OF INTERESTS - CIVIL PROCEDURE CODE, 1908 - ORDER 21 RULE 16 PROVISO 2 - SATISFACTION OF DECREE - CIVIL PROCEDURE CODE, 1908 - ORDER 21 RULE 2(3) - EXECUTION OF DECREE - CIVIL PROCEDURE CODE, 1908 - SECTION 47 - OBJECTION TO EXECUTION - PARTNERSHIP ACT, 1932 - SECTION 69 - UNREGISTERED PARTNERSHIP - LOCUS STANDI TO OBJECT - LICENSE - PROTECTION OF POSSESSION - Where the decree holder and the judgment debtor both transfer their right, title, and interest in favor of a third party, and the decree holder files an application in the execution proceeding stating that the judgment debtor has paid all the dues under the decree and there is no necessity of proceeding with the execution case, the decree is extinguished and cannot be executed further. The merger of interests of the decree holder and the judgment debtor in the same person results in the extinguishment of the decree. The second proviso to Rule 16 of Order 21 of the Civil Procedure Code, 1908, which provides that where a decree is transferred by assignment in writing or by operation of law, the transferee may apply to the court to be substituted in place of the decree holder, does not apply in a case where the decree holder and the judgment debtor both transfer their interests to the same person. The satisfaction of a decree under Order 21 Rule 2(3) of the Civil Procedure Code, 1908, which provides that a payment or adjustment which has not been certified or recorded shall not be recognized by any court executing the decree, refers to payments or adjustments that have not been brought to the notice of the court and recorded in its records. It does not override a court order adjudicating the extent or nature of the adjustment. An unregistered partnership cannot maintain an objection under Section 47 of the Civil Procedure Code, 1908, as per Section 69 of the Partnership Act, 1932. However, the objection can be maintained if the partnership is registered at the time of the objection. A licensee in possession of the property can object to the execution of a decree for possession if the decree has been extinguished, and the license has not been terminated.

Fact of the Case:

The Trustees for the Port of Calcutta obtained a decree for possession of a plot of land leased to Engineers Syndicate for non-payment of rent. Engineers Syndicate sold the land to the Goswamis, who paid the arrears of rent and obtained a 30-year lease from the Trustees. The Trustees filed an execution case for recovery of possession against Engineers Syndicate, and the Goswamis applied to be substituted as the decree holders. The executing court allowed the substitution and dismissed the objections filed by sub-tenants claiming that the decree was extinguished. The sub-tenants filed revisional applications challenging the order of the executing court.

Finding of the Court:

The court held that the decree was extinguished as a result of the merger of interests of the decree holder and the judgment debtor in the Goswamis. The court also held that the objection filed by the unregistered partnership was not maintainable, but the objection filed by the licensee was maintainable.

Issues: 1. Whether the decree was extinguished as a result of the merger of interests of the decree holder and the judgment debtor in the Goswamis? 2. Whether the objection filed by the unregistered partnership was maintainable? 3. Whether the objection filed by the licensee was maintainable?

Ratio Decidendi: 1. The court held that the decree was extinguished as a result of the merger of interests of the decree holder and the judgment debtor in the Goswamis based on the following legal principles: * The second proviso to Rule 16 of Order 21 of the Civil Procedure Code, 1908, does not apply in a case where the decree holder and the judgment debtor both transfer their interests to the same person. * The satisfaction of a decree under Order 21 Rule 2(3) of the Civil Procedure Code, 1908, refers to payments or adjustments that have not been brought to the notice of the court and recorded in its records. It does not override a court order adjudicating the extent or nature of the adjustment. 2. The court held that the objection filed by the unregistered partnership was not maintainable based on Section 69 of the Partnership Act, 1932, which provides that an unregistered partnership cannot maintain an objection under Section 47 of the Civil Procedure Code, 1908. 3. The court held that the objection filed by the licensee was maintainable based on the principle that a licensee in possession of the property can object to the execution of a decree for possession if the decree has been extinguished, and the license has not been terminated.

Final Decision: The court allowed the revisional application filed by the licensee and set aside the order of the executing court dismissing his objection. The court declared that the decree for possession stood extinguished and dismissed the execution case. The court dismissed the revisional application filed by the unregistered partnership.