🗺️ Part II · Execution — Star Map (§§ 36–74 overview) ↗

CPC, 1908 · Part II · Execution · Assignment of decrees

Transferee of a Decree

Buy or take over a decree and you take it warts and all — whatever the judgment-debtor could have raised against the original holder, he can raise against you.

§ 49

How to read Section 49

The setting

A decree is property — the decree-holder can transfer or assign it to someone else, who then executes it. § 49 fixes that transferee’s position.

The rule

The transferee takes the decree subject to the equities — the defences, set-offs or cross-claims — that the judgment-debtor could have used against the original holder.

The point

Assignment cannot be used to defeat the judgment-debtor. He keeps every answer he already had; the transferee is in no better position than the person he bought from.

The bare Act

49. Transferee.

Every transferee of a decree shall hold the same subject to the equities (if any) which the judgment-debtor might have enforced against the original decree-holder.

Provenance § 49 stands as enacted in the original Code of 1908 — the bare Act carries no amendment to it.

Key terms decoded

Transferee

A person to whom a decree is assigned or transferred (by sale, gift or operation of law).

Equities

The defences, set-offs, adjustments or cross-claims the judgment-debtor could raise — e.g. part-payment, fraud, failure of consideration.

Judgment-debtor

The person against whom the decree was passed and who is bound to satisfy it.

Original decree-holder

The person who first held the decree, before it was transferred.

The picture — the strings travel with the decree

The decree changes hands, but the judgment-debtor’s answers to it do not fall away — they attach to the decree and bind whoever holds it.

Phrase by phrase

One sentence, five moving parts:

Who

Every transferee of a decree

Every — no exception. Anyone to whom a decree is transferred or assigned (by sale, gift, or operation of law) is caught by this rule.

Holds the decree

shall hold the same

He holds the very same decree — he steps into the original holder’s shoes, taking the same rights, no more.

The catch

subject to the equities (if any)

But he holds it burdened — subject to the equities (defences, set-offs, cross-claims), if any exist. Where there are none, he holds it free.

Whose equities

which the judgment-debtor might have enforced

Only the judgment-debtor’s equities — the answers he could have asserted. A stranger’s claims are not imported.

Against whom

against the original decree-holder

Equities good against the original holder pass through to bind the transferee — the assignment does not strip the judgment-debtor of them.

What “subject to the equities” means

A familiar principle

§ 49 is the execution-law form of a wider rule: an assignee takes subject to equities. You cannot pass on a better title than you yourself hold.

Examples of equities

The judgment-debtor may have, against the original holder, a part-payment, an adjustment, a set-off, a fraud or failure of consideration affecting the decree, or a cross-decree. All of these survive the transfer.

Who decides them

If the transferee executes and the judgment-debtor pleads such an equity, it is an execution question — decided by the executing court under § 47, not a fresh suit.

The thread through § 49 is fairness to the judgment-debtor: a decree may be freely bought and sold, but its sale must never be allowed to wash away the defences he already had.

The maxim behind it

“Nemo dat quod non habet”

— No one can give what he does not have.

In § 49: A decree-holder can transfer no better right than he himself holds. So a transferee takes the decree subject to every equity the judgment-debtor could have raised against the original holder — the settled rule that an assignee takes subject to equities.

How § 49 connects

A transferee’s rights are exercised in execution and tested by the executing court. The live links open the provisions around it.

§ 47Questions for the executing courtIf the judgment-debtor pleads an equity against the transferee, it is decided here — not by a separate suit.

§ 39Transfer of decreeTransfer of a decree between courts — distinct from § 49’s transfer of the decree to a new holder.

§ 38Court by which a decree may be executedThe forum in which the transferee applies to execute the decree he now holds.

§ 48[Repealed] & Rajasthan § 48-AThe section immediately before § 49 in this Part.

Procedure tie-in: a transferee’s application to execute is governed by Order XXI, Rule 16 — § 49 supplies the substantive limit (subject to equities) that the executing court applies.

Quick test for a transferee:

1 Did you take the decree by transfer / assignment? → you are bound by § 49.

2 Could the judgment-debtor have raised an equity against the original holder? → he can raise it against you.

3 Dispute about it? → the executing court decides (§ 47).

Part II · Execution · §§ 36–74 — § 48 · § 49 · § 50 (legal representative)