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Odhavji Lakhamshi Vs. Sakarchand Dahyabhai - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Case NumberFirst Appeal No. 119 of 1943
Judge
Reported in(1948)50BOMLR598
AppellantOdhavji Lakhamshi
RespondentSakarchand Dahyabhai
DispositionAppeal dismissed
Excerpt:
.....applying for execution without issue of notice to judgment-debtor -order of attachment-judgment-debtor's objections against assignment and title of assignee to maintain execution-court hearing objections and holding assignment and title of assignee valid-darkhast whether maintainable-validity of attachment and findings of court.;under order xxi, rule 16, civil procedure code, 1908, an assignee of a decree is entitled to apply for its execution, but he cannot get the decree executed unless he has established his title to be the assignee after giving notice to the judgment-debtor and after his objections, if any, have been heard by the court.;the assignee of a decree applied for execution of the decree and the executing court made an order of attachment. no notice under o.xx, rule 16,..........and applying for execution, but all processes in execution which were taken before the judgment-debtor's objections were heard and before the title of the assignee was established were bad in law. the decree could only be executed after the objections had been heard and the judgment-debtor's title had been established. to the extent that the learned judge made the order of attachment, he was doing something which he was not entitled to do, because he was permitting the assignee to execute the decree before he had established his title. but we do not agree with mr. shah that not only the order of attachment is bad but the assignee was not entitled to maintain the darkhast and the darkhast should be dismissed.4. in support of his contention mr. shah has relied on a decision reported in.....
Judgment:

M.C. Chagla, Ag. C.J.

1. This appeal raises a very short question and has been referred to this full bench by my brother Gajendragadkar J, and Mr. Justice Macklin. The facts leading up to the appeal are that on June 28,1942, the respondent applied for execution of the decree as the assignee and on June 24, 1942, the executing Court made an order for attachment. On July 3,1942, the attachment was levied. The judgment-debtor came to know about the levying of the attachment and he filed a written statement raising various contentions against the assignment of the decree and challenging the title of the assignee to maintain the execution proceedings. His objections were heard and the learned Judge held against him and came to the conclusion that the assignment was good and that the title of the assignee to maintain execution proceedings had been established. On that he issued a notice under Order XXI, Rule 66, with regard to the attached property. It is from this order that this appeal is preferred.

2. The first objection taken by Mr. Shah is that no notice was issued under Order XXI, Rule 16, and, therefore, the darkhast filed by the assignee should be dismissed. The scheme of Order XXI, Rule 16, is this. It enables a transferee of a decree to apply for the execution of the decree in the same manner and subject to the same conditions as if the application were made by the decree-holder. The first proviso to Order XXI, Rule 16, contains a certain prohibition and that prohibition is that when the decree is transferred by assignment, notice of the application for execution has to be given to the transferor and the judgment-debtor and the decree shall not be executed until the Court has heard their objections to its execution. Therefore, although under Order XXI, Rule 16, an assignee is entitled to apply for execution, he cannot get the decree executed unless he has established his title to be the assignee after giving notice to the judgment-debtor and after his objections, if any, have been heard by the Court. It is to be noticed that a notice to the judgment-debtor is mandatory. As the Privy Council has pointed out, it is the very foundation of the jurisdiction under Order XXI, Rule 16, but it is equally to be noted that the object of giving the notice is to enable the judgment-debtor to place before the Court his objections, if any, to the execution of the decree, and what is prohibited is the execution of the decree without hearing the objections of the judgment-debtor.

3. In this case although admittedly no notice was given under Order XXI, Rule 16, the objections of the judgment-debtor were heard in full and adjudicated upon and the learned Judge came to the conclusion that the objections failed and the assignment was proved. Therefore, in our opinion there was no bar against the assignee filing his darkhast and applying for execution, but all processes in execution which were taken before the judgment-debtor's objections were heard and before the title of the assignee was established were bad in law. The decree could only be executed after the objections had been heard and the judgment-debtor's title had been established. To the extent that the learned Judge made the order of attachment, he was doing something which he was not entitled to do, because he was permitting the assignee to execute the decree before he had established his title. But we do not agree with Mr. Shah that not only the order of attachment is bad but the assignee was not entitled to maintain the darkhast and the darkhast should be dismissed.

4. In support of his contention Mr. Shah has relied on a decision reported in Kassum Goolam Hoosein v, Dayabhai Amarsi I.L.R. (1911) 36 Bom. 58 . There also no notice was issued to the judgment-debtor on the application for execution by a transferee of a decree and in execution of the decree the judgment-debtor's property was attached in his shop by seizure. The division bench consisting of Sir Basil Scott C.J. and Mr. Justice Batchelor held that the execution of the decree by attachment was unlawful and not merely irregular and they proceeded not only to set aside the attachment proceedings but also to dismiss the darkhast filed by the transferee. With great respect to the learned Judges, in our opinion this case was wrongly decided because what followed upon the finding that the execution of the decree was unlawful was the setting aside of the particular process in execution which had been adopted by the decree-holder. The dismissal of the darkhast did not logically follow upon that finding because, as we have pointed out, there is nothing in law to prevent a transferee from filing his darkhast applying for execution before he has established his title and before notice has been issued under Order XXI, Rule 16. The learned Judges seem to have taken the view that a transferee cannot apply for execution before notice has been served on the judgment-debtor under Order XXI, Rule 16. That, with very great respect, is not the correct view of the law. We, therefore, are of opinion that the order of attachment must be set aside, but the darkhast need not be dismissed.

5. But Mr. Shah has contended that not only the order of attachment must go but even the findings given by the learned Judge as to the status of the assignee and as to the validity of the assignment should also be set aside. We cannot accept that contention. Mr. Shah says that these findings were arrived at in the absence of any notice given to him Under Order XXI, Rule 16. That is perfectly true. But as we have pointed out, the object of the notice is to enable the judgment-debtor to submit his objections. If in fact he has submitted his objections and those objections have been heard, then he cannot be heard to say that that adjudication is bad because he did not receive the notice. These findings are not in any sense a part of the execution of the decree. If they were, then certainly Mr. Shah would be right that the decree could not be executed till the title of the assignee has been established. It is obligatory upon the learned Judge to hear the objections and to decide the question as to the validity of the assignment. What he did was under an obligation to do under Order XXI, Rule 16. He only did it without issuing the necessary notice, but that is a mere irregularity which has been cured by the judgment-debtor appearing, putting in a written statement and filing his objections. We, therefore, hold that the findings of the learned Judge with regard to the validity of the assignment and the title of the assignee must stand. Therefore, the order of attachment will be set aside. But as regards the final order under Order XXI, Rule 66, which was issued after the learned Judge held that the title of the assignee had been established, must stand. Therefore, the appeal being from that final order, the appeal must be dismissed. No order as to costs.


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