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Jivaji Keshav Bapat Vs. Vishnu Rangnath Bapat - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Case NumberFirst Appeal No. 309 of 1943
Judge
Reported inAIR1947Bom380; (1947)49BOMLR182
AppellantJivaji Keshav Bapat
RespondentVishnu Rangnath Bapat
DispositionAppeal dismissed
Excerpt:
.....of decree during pendency of darkhast-application by assignee of decree to continue darkhast as darkhastdar-whether such application sustainable.;during the pendency of a darkhast which was under appeal to the high court, the decree-holder transferred the decree to an assignee. the assignee then applied to be brought on the record of the darkhast, but the judgment debtors objected on the ground that by o. xxi. r. 16, of the civil procedure code, 1908, it was not open to the assignee to apply to be brought on the record of a pending darkhast:-;that the darkhast could be continued in the name of the assignee as the darkhastdar.;the rules of the civil procedure code, 1908, are not intended to be exhaustive, and provided that no prohibition is violated, no rule ought to be..........rule ought to be construed as meaning that anything not covered by that particular rule or other rules of the code is illegal. it is manifestly inconvenient to compel the assignee to institute a fresh darkhast. in the present case the rule as to notice to the assignor and the judgment debtors provided by o. xxi, r. 16, would hardly be necessary, since both the assignor and the judgment debtors were already on the record of the darkhast; and for ourselves we can think of no reason whatever why the darkhast should not be continued in the name of an assignee, just as a suit can be continued in the name of someone who takes the plaintiff's interest. we have not been referred to any authority in support of the view put forward. on the other hand there is the direct authority of a single.....
Judgment:

Macklin, J.

1. During the pendency of a darkhast which was then under appeal at an interlocutory stage to this High Court, the decree-holder transferred the decree to an assignee. In due course the assignee applied to be taken onto the record of the darkhast and he was added as a party. That was after the appeal to the High Court had been decided. Objection was taken by the judgment debtors to the application by the assignee to be brought on the record on the ground that the application was out of time. We do not quite know the arguments which they used to show that it was out of time; but their contention was at any rate rejected, the darkhast was allowed to continue with the assignee as the darkhastdar, and the judgment debtors have again come in appeal to this Court.

2. The argument put to us is that by O. XXI, Rule 16, it is not open to an assignee to apply to be brought on the record of a pending darkhast; all he can do is to ask leave to execute the decree on his own account after complying with the provisions of O. XXI, Rule 16; and we are told that if this is done, the darkhast will be time barred under the twelve years rule. Assuming that a new point of this kind can be taken in appeal, we still think that there is no substance in it. It is true that O. XXI, Rule 16, does not seem to contemplate a case of an assignment during the pendency of a darkhast and the assignee being brought on the record of the darkhast; but that does not mean that he cannot be brought on the record of a pending darkhast. The rules of the Civil Procedure Code are not intended to be exhaustive; and provided that no prohibition is violated, no rule ought to be construed as meaning that anything not covered by that particular rule or other rules of the Code is illegal. It is manifestly inconvenient to compel the assignee to institute a fresh darkhast. In the present case the rule as to notice to the assignor and the judgment debtors provided by O. XXI, r. 16, would hardly be necessary, since both the assignor and the judgment debtors were already on the record of the darkhast; and for ourselves we can think of no reason whatever why the darkhast should not be continued in the name of an assignee, just as a suit can be continued in the name of someone who takes the plaintiff's interest. We have not been referred to any authority in support of the view put forward. On the other hand there is the direct authority of a single Judge of the Allahabad High Court against that view in Mohan Singh v. Jagat Singh I.L.R.(1928) All. 621. I may also refer to Section 146 of the Code, which appears to be against the view submitted to us.

3. The appeal is dismissed with costs.


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