SARASWATI DEVI GUPTAversusSUDHA RANI AND ORS.

A                            SARASWATIDEVIGUPTA
                                           v.
                              SUDHA RANI AND ORS.

                                DECEMBER 14, 2005

B                     [B.P. SINGH AND AL TAMAS KABIR, JJ.]


           Code of Civil Procedure, 1908:
           Order 21 Rule 16-Application for execution by transferee of decree-
C Decree-holder transferred decree by assignment to the transferee-Supreme
   Court upheld the assignment-when the decree was put in execution, the
  judgment-debtor raised an objection that the transferee had no locus standi
   to execute the decree-The said objection was rejected by the Executing
   Court as well as the Revisional Court-But the High Court directing the
D Executing Court to decide the question as to whether there was a genuine
   and valid assignment in favour of the transferee-Correctness of-Held: The
   right of the transferee as an assignee was upheld by Supreme Court-
   Therefore, the High Court was clearly in error in directing that the same
   question, which was finally determined by Supreme Court, shall be gone into
   once again by the Executing Court-this amounted to directing the Executing
E Court to go behind the decree which had attained finality-High Court
  judgment set aside.
           One 'R' filed a suit for specific performance of an agreement to sell a
     house in question. The trial court dismissed the suit but the appellate court
     allowed the appeal. On the death of 'R' the appellant was brought on record
F    since she claimed that the late 'R' had assigned his interest in the decree in
     her favour. The High Court allowed the second appeal preferred by the
     defendant-respondent
         The appellant filed an appeal before this Court which was allowed. At
  that stage a contention was advanced before this Court that the appellant, who
G was the transferee from the decree-holder, had no locus standi to prefer the
  appeal. This Court rejected the said contention on the ground that such a
  contention was not raised before the High Court despite liberty given by the
  High Court to raise the said contention.

           The decree was then put in execution and the respondent filed an
II                                        746
          SARAS WA Tl DEVI GUPTA v. SUDHA RANI [B.P. SINGH.J.]              747
objection under Order 21Rule16 of the Code of Civil Procedure, 1980 that           A
the transferee had no locus standi to execute the decree. The Executing Court
as well the Revisional Court rejected the objection. However, the High Court
directed the Executing Court to decide the question as to whether there was
a genuine and valid assignment in favour of the appellant. Hence the appeal.

      Allowing the appeal, the Court                                               B
      HELD: 1. The High Court by directing the Executing Court to examine
the question as to whether there was a valid assignment in favour of the
appellant committed an error apparent on the face of record, inasmuch as
failed to notice the finding recorded in the judgment of this Court which
conclusively decided the question of locus standi in favour of the appellant. In   C
view of the judgment of this Court upholding the right of the appellant as an
assignee, no challenge to her locus standi as an assignee could be entertained
by any Court thereafter. The High Court was clearly in error in directing
that the same question, which was finally determined by this Court, shall be
gone into once again by the Executing Court. This amounted to directing the        D
Executing Court to go behind the decree which had attained finality.
                                                                      (750-D-E)

      CIVIL APPELLATE JURISDICTION: Civil Appeal No. 6708 of2001.

      From the Judgment and Order dated 22.7.99 of the Allahabad High Court
in R.P. No. 64773/96 in C.M.W.P. No. 8532of1996.                                   E
     R.C. Verma, Ms. Jyoti Saxena, B.B. Sinha and M.P. Shorawala for the
Appellant.

      Sarvesh Bisaria and Anil Nag (NP) for the Respondents.

      The Judgment of the Court was delivered by                                   F
      8.P. SINGH, J. This Appeal by Special Leave is directed against the
Order of the High Court of Judicature at Allahabad in Review Petition No.64773
of 1996 dated 22.7.1999 whereby the High Court summarily dismissed the
Review Petition preferred by the appellant herein. By its Order dated August
30, 1996 the High Court had directed the Executing Court to entertain and          G
decide the question as to whether a valid assignment of the decree had been
made in favour of the appellant/assignee.

     The facts of the case may be briefly recapitulated:-

      Suit No.23 of 1972 was filed by one Raghu Nath Prasad for specific           H
    748                    SUPREME COURT REPORTS [2005) SUPP. 5 S.C.R.

A performance of an agreement to sell the house in question. Shamsher Bahadur
  was the defendant in the said suit. The suit was dismissed by the Trial court,
  but on appeal, by its judgment dated 7th April, 1975 the Appellate Court
  allowed the appeal and ordered specific performance of the agreement. The
  plaintiff Raghu Nath Prasad, the decree holder died on Ist September, 1979.
B Thereafter, by Order dated 20th November, 1980 the legal representatives of
  the said Raghu Nath Prasad were brought on record as also the assignee, the
  appellant herein, since she claimed that the late Raghu Nath Prasad had
  assigned his interest in the decree in her favour. A Second Appeal was
  preferred by the defendant against the judgment of the Appellate Court
  decreeing the suit for specific performance and the said Second Appeal was
C allowed by judgment and order dated 5.7.1982. Thus the decree of specific
  performance was set aside and the order of the Trial Court dismissing the suit
  was restored. After the judgment and order of the High Court, the legal
  representatives of Raghu Nath Prasad who had been brought on record, did
  not take any further interest in the matter and did not even challenge the
D judgment and order of the High Court dismissing the suit filed by the plaintiff
  Raghu Nath Prasad. Only the assignee namely, the appellant, came up by way
  of appeal to this Court. By judgment and order dated I0th February, 1989 this
  Court allowed the appeal. This Court held that the High Court was in error
   iri dismissing the suit for specific performance. The appeal was allowed.

        At that stage a contention was advanced before this Court· that the
E appellant, who was the transferee from the decree holder, had no locus standi
  to prefer the appeal. This Court noticed that when the appellant (assignee)
  had made an application before the High Court for being joined as a
  respondent, the High Court had passed an order to the effect that the applicant
  be brought on record as a respondent in the appeal, but it would be open
F to the appellant (before the High Court) to raise such objections as they
  would like about the locus standi of the applicant qua the controversy which
  had to be decided in the appeal, at the time of final hearing. This Court
  noticed that despite the liberty given to raise objections as to the locus standi
  of the assignee, no such objection was raised. This Court observed :-

G         "The judgment of the High Court clearly indicate that the· respondent
    did not raise any question in respect of that and in view of this matter the
    contention raised here for the first time cannot be considered. The appeal is,
    therefore, allowed.

        The judgment and decree passed by the High Court is set aside and that
H of the Lower Appellate Court is restored. The appellant will be entitled to the
          SARAS WA TI DEVI GUPTA v. SUD HA RANI [B.P. SINGH. J.]             749
cost of this appeal which we quantify Rs.2000/-."                                    A
      In the absence of any objection raised before the High Court, this Court
did not entertain the plea of the respondent raised for the first time in the said
Appeal challenging the locus standi of the appellant as an assignee.

       After the judgment and order of this Court the decree was put in
execution and an objection was filed by the respondents herein under Order B
21 Rule 16 C.P.C. The said objection was rejected by the Executing Court as
well as by the Revisional Court. The Executing Court held, inter-alia, that
Order 21 Rule 16 C.P.C applied only if after passing of the final decree the
decree holder makes an assignment. However, if during the pendency of the
case there is an assignment of decree, and the rights and liabilities of the C
parties have been decided, thereafter no notice of proceeding is requited to
be given under Order 21 Rule 16 CPC. Applying these principles the Executing
Court held that under Section 146 CPC Saraswati Devi was fully entitled to
execute the decree. It noticed the judgment of this Court and concluded that
no rights were left for the applicant to challenge the title. It also noticed the
fact that after the judgment of the High Court dismissing the suit for specific D
performance the legal representatives of Raghu Nath Prasad did not take any
steps to file an appeal in the Supreme Court and it was only the assignee who
challenged the judgment of the High Court before the Supreme Court. The
Supreme Court while allowing the appeal rejected the argument advanced
before it that Saraswati Devi had no locus standi to file the appeal.             E
       The Revisional Court affirmed the order of the Executing Court where
after the matter was taken to the High Court by a Writ Petition being Civil
Miscellaneous Writ Petition No.8532 of 1996. The High Court took the view
that it is yet to be decided as to whether the benefit of the decree in the suit
filed by Raghu Nath Prasad will go to his legal representatives or the alleged F
assignee, and that in tum will depend on whether there was a genuine
assignment by Raghu Nath Prasad in favour of Saraswati Devi (appellant
herein). Accordingly, the High Court directed the Executing Court to decide
the question as to whether there was a genuine and valid assignment in
favour of Saraswati Devi (the appellant herein) by Raghu Nath Prasad, and
as to who will get the benefit of the decree of specific performance.            G
      In our view the High Court was completely in error iQ coming to the
conclusion that even after the judgment and order of the Supreme Court
allowing the appeal preferred by the appellant herein namely, the assignee, it
was still open to the Executing Court to consider the question as to whether
there was a valid assignment in favour of the appellant herein. In our view,         H
    750                      SUPREME COURT REPORTS [2005) SUPP. S S.C.R.

A   this Court, by its judgment and order dated 10th February, 1989 in the Appeal
    preferred by the assignee allowed the appeal preferred by her. The question
    of locus standi was raised before this Court but that question was not
    entertained by this Court for the first time, since this Court held that such an
    objection in the first instance ought to have been raised before the High
B   Court pursuant to the liberty reserved, while adding the assignee as a party
    respondent in the appeal. Since no objection whatsoever was raised before
    the High Court challenging the locus standi of the appellant as the assignee
    of the decree, the same could not be raised before this Court for the first time.
    If, as held by this Court, that question could not be raised before this Court
    for the first time since such an objection was not raised before the High Court,
C   it must logically follow that such an objection cannot be raised in the Executing
    Court as well. The effect of the judgment of this Court was that the assignment
    in favour of the appellant was upheld and could not be challenged thereafter.
    Indeed this Court proceeded to dispose of the appeal preferred by her as the
    assignee of the decree. The High Court by directing the Executing Court to
    examine that question committed an error apparent on the face of record,
D   inasmuchas it failed to notice the finding recorded in the judgment of this
    Court, particularly the finding recorded in the last paragraph of the judgment,
    which conclusively decided the question of locus standi in favour of the
    appellant. In view of the judgment of this Court upholding the right of the
    appellant as assignee, no challenge to her locus standi as assignee could be
E   entertained by any Court thereafter. The High Court was clearly in error in
    directing that the same question, which was finally determined by this Court
    by its judgment and decree of 10.2.1989, shall be gone into once again by the
    Executing Court. This amounted to directing the Executing Court to go behind
    the decree which had attained finality. We are, therefore, satisfied that the
    High Court committed an error which is apparent on the face of the record.
F
          Consequently we allow the appeal, set aside the judgment and order of
    the High Court and dismiss the objections filed by the respondents before
    the Executing Court challenging the locus standi of the appellant as assignee
    of the decree. The Order of the High Court dated 30th August, 1996. directing
    the Executing Court to go into that question is set aside, and the Order
G   passed by the Executing Court and the Revisional Court. dated 8.8.1994 and
    10.12.1996 are restored.                                          O

             No order as to costs.

    v.s.s.                                                         Appeal allowed.
H