Assignment of debt and later decree: execution barred under Order XXI rule 16, but allowed under section 146.

A decree not yet in existence at the time of assignment is not transferred for execution under Order XXI, rule 16 unless the decree itself is expressly or necessarily included in the assignment. A transfer of the underlying debt or claim does not, by itself, amount to an assignment of a later decree. However, the assignee of that debt may still execute the decree as a person claiming under the decree-holder under section 146, because that provision enables execution by one deriving title from the transferors. The result is that execution under Order XXI, rule 16 was unavailable, but execution under section 146 was maintainable.

---

---

Issues: (i) Whether a person who acquired the book debts and the subject-matter of a pending suit under a prior assignment, but not an express transfer of a decree passed later, could execute the decree as a transferee under Order XXI, rule 16 of the Code of Civil Procedure, 1908; (ii) whether such person could nevertheless execute the decree as a person claiming under the decree-holder under section 146 of the Code of Civil Procedure, 1908.

Issue (i): Whether the respondent was a transferee of the decree under Order XXI, rule 16.

Analysis: Order XXI, rule 16 contemplates transfer of an existing decree by assignment in writing or by operation of law. A transfer of property or a book debt does not, by itself, amount to a transfer of a decree not yet in existence. The equitable doctrine that an agreement to assign future property fastens upon the property when acquired does not, by itself, convert the earlier instrument into an assignment of the later decree for the purposes of the rule. On the facts, the document transferred the debts and related rights, but not the future decree expressly or by necessary implication.

Conclusion: The respondent was not a transferee of the decree within Order XXI, rule 16.

Issue (ii): Whether the respondent could execute the decree under section 146 as a person claiming under the decree-holder.

Analysis: The transfer of the debt carried the legal incidents and remedies attached to it, and the respondent became the real owner of the claim underlying the suit. Even though the decree was not transferable under Order XXI, rule 16 on the footing urged, the respondent derived title from the transferors and could be treated as claiming under them for the purposes of execution. Section 146 is a enabling provision and is not excluded merely because Order XXI, rule 16 does not apply on its own terms.

Conclusion: The respondent could maintain execution proceedings under section 146.

Final Conclusion: The appeal failed because the decree could not be executed by the respondent as a transferee under Order XXI, rule 16, but the respondent was entitled to proceed in execution as a person claiming under the decree-holder under section 146.

Ratio Decidendi: A decree not in existence at the time of an assignment is not transferred by assignment in writing for the purposes of Order XXI, rule 16 unless the decree itself is expressly or necessarily covered; however, the assignee of the underlying debt or claim may still execute the decree under section 146 as a person claiming under the decree-holder.

---