The main legal point established in the judgment is the recognition of the rights of a part transferee in execution proceedings and the limitations on the transferor's authority as stipulated in the deed of transfer.

John Wallis, C.J.

1. This is an appeal under the Letters Patent from a judgment of Oldfield, J. Seshagiri Aiyar, J. dissenting dismissing, an appeal from an order of the District Judgment of Chittor refusing the application of the appellant, who claims to be a transferee of a one eighth share in a mortgage decree, to make him a party to the execution proceedings on the mortgage decree in substitution of, or jointly with, the decree-holder. The question has been raised whether any appeal lay to the High Court from the order inf question.

2. In making that order the District Judge purported to act under Order 22, Rule 10 of the Code of Civil Procedure and, as orders under that rule are appeal-able, we are bound to entertain the appeal as held in Abdul Rahiman Saheb v. Ganapalhi Bhattu (1900) I.L.R. 23 Mad. 517 and Lakshmanan Chetty v. Ramanathan Chetty (1904) I.L.R. 28 Mad. 127.

3. In dealing with the appeal it will be convenient to consider in the first place whether under the present Code a decree can be transferred in part, and if so, whether the part transferee can be made a party to pending execution proceedings and allowed to execute if the transferor who has obtained an order for execution fofbears to execute ; and secondly whether there has been a part transfer of the decree in this case, and if so, whether the part transferee, the petitioner, is debarred by the terms of the deed of transfer from executing the decree or intervening in the execution.

4. It was well settled under the Old Code that there could be part transfers of a decree. Kishvre Chand Bhakat v. Gisborne & Co. (1889) I.L.R. 17 Cal. 341 and Endoori Venkataramaniah v. Venkatachalamulu (1909) I.L.R. 33 Mad. 80 and it was also settled that, one of several decree holders could transfer his interest, Muthunarayana Reddi v. Balakrishna Reddi (1896) I.L.R. 19 Mad. 306: 6 M.L.J. 172. I do not find any Sufficient indication in the new Code that it was intended to alter the law in this respect. On the contrary the present Code contains a new general Section 146 enacting that, save as otherwise provided by this Code or by any law for the time being in force, where any proceeding may be taken on application made by or against any person, then the proceeding may be taken or the application may be made by or against any person claiming under him. This general provision is to take effect unless it is otherwise provided in the Code itself or by any law for the time being in force, and, even if it should be held that the part-transfer of a decree is not provided for in the rules, though it is not prohibited, that would not prevent due effect being given to such part transfers under this section itself which is wider than the rules if it can be read is authorising such a part transfer. The section should I think have a beneficial interpretation, and be read as supplementing the rules, and, as a part transferee is a person claiming under a decree holder, I think it sufficiently au thorises applications in execution by such a part transferee. Further Section 232 of the Old Code which was held to authorise such an application is reproduced in Order 21, Rule 16, and the fact that the case of the interest of any decree-holder being transferred is now expressly provided for in the rule does not in my opinion show that part transfers are not covered by the rule, and still less that the rule prohibits an application by a part transferee of the decree so as to make Section 146 inapplicable. Reliance has also been placed for the appellant on Order 22, Rule 10(I) which provides that in other cases of an assignment, creation or devolution of any interest during the pendency of a suit, the suit may, by leave of the court, be continued by or against the person to or upon whom such interest has come or devolved. On the other hand it has been contended that this order does not apply to proceedings in execution. Generally an application for execution is a proceeding in a suit as held in