TMI Blog1924 (2) TMI 1X X X X Extracts X X X X X X X X Extracts X X X X ..... The learned Munsiff held that the appellants were not transferees of the decree either by assignment in writing or by operation of law and therefore they were not competent to apply for execution and consequently dismissed the application for execution. On appeal being taken from the said order, the order was affirmed and hence the present appeal to this Court. 3. It was contended on behalf of the appellants that by reason of the provisions of Section 148 of the Bengal Tenancy Act, a mere assignment of the decree would not have enabled them to execute the same as a rent decree, and inasmuch as they are assignees of the decree-holders' properties in respect of which the rent decree was passed, they were in a better position than mere assignees of the decree, that though there was no assignment of the decree in writing, there was one by operation of law inasmuch as the assignment of the properties had been made together with all arrears of rent and on principles of equity it should have been held that they were transferees of the decree by assignment. Reliance was placed on their behalf upon the case of Ananda Mohan Ray v. Promotha Nath Ganguli 57 Ind. Cas. 874 : 25 C.W.N. 86 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y operation of law ordinarily would be legal representatives of the deceased decree-holder or the Official Assignee in the case of an insolvent debtor or the purchaser of a decree at a Court sale, or a minor succeeding to the estate which was in the hands of an executor, and other instances where there is a vesting of the interest by operation of statute. 8. It is necessary therefore to analyse the aforesaid decision very carefully in order to see whether it really professes to extend the meaning of that expression. The facts in that case were as follows: certain properties together with all rents, issues and profits arising therefrom or appertaining thereto were mortgaged; the mortgagee obtained a decree on this mortgage on the Original Side of this Court, and in execution of this decree the properties hypothecated together with all arrears of rent were sold and were conveyed by the Registrar to the appellants in this appeal on a certain date. On that day certain rent suits which the mortgagors had instituted previously for back rents in respect of some jamas held under the properties hypothecated were decided and decrees for rent passed in favour of the mortgagors. The appella ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eral terms, the words being all moveable property, debts, claims, things in action whatever vested in them as such executors. Sargent, C.J., observes in his judgment, But it has been suggested that Parmanand is not a transferee of the decree under Section 232 of the Civil Procedure Code, because the decree has not been transferred to him by assignment in writing or by operation of law, and therefore he is not entitled to apply for execution. There is no doubt that in a Court of Equity in England, the decree would be regarded as assigned to Purmananddas and he would be allowed to proceed in execution in the name of the assignors. Here there is no distinction between law and equity, and by the expression 'by the operation of law' must be understood the operation of law as administered in these Courts. Wo think under the circumstances we must hold that this decree has been transferred to Purmananddas by operation of law. In the present case the decree has been transferred in writing as construed in these Courts. These last words are very important and they appear in the judgment of Sargent, C.J., himself. In my judgment it is obviously right to invoke the aid of doctrines o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... executed in the same manner as if the application were made by the original decree-holder.' It appears to their Lordships, in the first place, that, assuming Wajed to have the interest asserted, the decree was not, in the terms of this section, transferred to him, either by assignment, which is not pretended, or by operation of law, from the original decree-holder. No incident had occurred on which the law could operate to transfer any estate from his mother to him. There had been no death; there had been no devolution; there had been no succession. His mother retained what right she had; that right was not transferred to him; if he had a right, it was derived from his father; it appears to their Lordships, therefore, that he is not a transferee of a decree within the terms of this section. Their Lordships have further to observe, that they agree with the Chief Justice in the view which he expressed,--that this was not a section intended to apply to cases where a serious contest arose with respect to the rights of persons to an equitable interest in a decree. it was not intended to enable them to try an important question, such as the legitimacy or illegitimacy of an heir. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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