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Sundarabai Balappanaik Chitguppi Vs. Gurushiddappa Gurubasappa Bhusnur - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtMumbai
Decided On
Case NumberSecond Appeal No. 392 of 1940
Judge
Reported in(1942)44BOMLR164
AppellantSundarabai Balappanaik Chitguppi
RespondentGurushiddappa Gurubasappa Bhusnur
DispositionAppeal dismissed
Excerpt:
civil procedure code (act v of 1908), order xxi, rule 16, 22, 66-assignment of decree-notice to judgment-debtor-notice combined under rule 22 and 16 sufficient-registration of deed of assignment-indian registration act (xvi of 1908), section 17-res judicata-execution proceedings.;in execution of a mortgage decree obtained by him the decree-holder filed several darkhasts and recovered some amount from the judgment-debtor. thereafter he assigned his decree for a consideration of rs. 90; and in 1926 both he and the assignee together filed a darkhast to execute the decree, in which notices were first issued under order xxi, rule 22, of the civil procedure code, 1908, followed by a proclamation for sale under order xxi, rule 66, but the darkhast was afterwards dropped. in 1927 the assignee..........have differed on the right of the darkhastdar to file the darkhast. the trial court held that the notice of assignment as required under order xxi, rule 16, had not been issued, and that therefore, the judgment-debtor had no opportunity to contest the alleged assignment in favour of the darkhastdar. it was further held that there was no bar of res judicata in taking up this point inasmuch as the judgment-debtors had no opportunity at any previous stage to take up the point which they have done in the present darkhast.4. the appellate court has differed from that view and held that in the first darkhast of 1926 after the assignment notices were issued to the judgment-debtors, and although they purported to be under order xxi, rule 22, they were substantially notices under order xxi, rule.....
Judgment:

Divatia, J.

1. This appeal arises in execution of a mortgage-decree. It is preferred by one of the judgment-debtors against the respondent who is the transferee of the decree from the original decree-holder. The objections raised by the judgment-debtor against the executability of the darkhast were, firstly, that there was no valid and legal assignment of the decree in favour of the respondent; and, secondly, even though the respondent had joined with the decree-holder in applying for execution in one darkhast of 1926 and applied for execution by himself in subsequent darkhasts, the judgment-debtor was not barred from contending in the present darkhast that the assignment had not been proved, and that even if proved, it was not a valid assignment.

2. The facts leading to these contentions are shortly these:-The mortgage-decree was passed in March, 1910, for Rs. 200 against two women. The decree-holder presented several darkhasts thereafter and recovered some amount. Thereafter, he is stated to have assigned his decree to the present respondent by a writing for Rs, 90. After the assignment a darkhast was filed in February, 1926, by the original decree-holder as well as the assignee, A sale proclamation of the mortgaged property under Order XXI, Rule 66, of the Civil Procedure Code, was issued in that darkhast, but thereafter the darkhast was dropped. Then the next darkhast was filed by the assignee himself in 1927. The mortgaged property was taken out for sale, and a sum of about Rs. 270 was paid by the judgment-debtors to the transferee, and it was disposed of as fully satisfied. Two more darkhasts were filed by the transferee in 1931 and 1934, and thereafter the present darkhast was filed in August, 1935. In this darkhast the judgment-debtors contended for the first time that the darkhastdar had no right to file this as well as the preceding darkhasts, that there was no writing to evidence the alleged assignment, that even if there was any, it was not valid, and that therefore, the darkhast should be dismissed. The respondent contended that the judgment-debtors were barred by the principle of res judkata from urging this point in the present darkhast as they did not do so in any of the previous darkhasts. It was further contended that the deed of assignment did not require registration and that he was, therefore, entitled to execute the darkhast.

3. The two lower Courts have differed on the right of the darkhastdar to file the darkhast. The trial Court held that the notice of assignment as required under Order XXI, Rule 16, had not been issued, and that therefore, the judgment-debtor had no opportunity to contest the alleged assignment in favour of the darkhastdar. It was further held that there was no bar of res judicata in taking up this point inasmuch as the judgment-debtors had no opportunity at any previous stage to take up the point which they have done in the present darkhast.

4. The appellate Court has differed from that view and held that in the first darkhast of 1926 after the assignment notices were issued to the judgment-debtors, and although they purported to be under Order XXI, Rule 22, they were substantially notices under Order XXI, Rule 16, and as no objection was urged by the judgment-debtors against the right of the transferee to proceed with that darkhast along with the original decree-holder, the judgment-debtors were now precluded from taking up that contention. It was further held that the deed of assignment did not require registration inasmuch as the consideration was less than Rs. 100.

5. The first point urged by Mr. Gumaste on behalf of the appellant is that no notices had been issued to the judgment-debtors under Order XXI, Rule 16. Exhibits 40 and 43 are the notices which have been issued to the two judgment-debtors separately. The notices purport to have been issued under Order XXI, Rule 22, but the contents of the notices are very much similar to those which are required in a notice under Rule 16. It is stated, among other things, that the assignee of the decree had filed a darkhast on the ground that he had purchased the decree in writing from the decree-holder. I agree with the lower Court in holding that the contents of those notices are substantially the same as are required to be in a notice under Rule 16, and that there is no prejudice to the judgment-debtors simply because the notices purport to have been given under Order XXI, Rule 22. It is true that as that darkhast was filed more than one year after the decree, a notice was required to be given to the judgment-debtors under Order XXI, Rule 22, and a notice was also required to be given to the judgment-debtors under Order XXI, Rule 16. No notice under Rule 16 was necessary to the judgment-creditor, the assignor, inasmuch as he himself had joined in this darkhast. In my opinion, the two notices, exhibits 40 and 43, which have actually been given, are good notices under Order XXI, Rule 16, as well as Rule 22. The purpose of giving a notice under Rule 16 to the judgment-debtor is to acquaint him with the fact that the darkhastdar purports to execute the decree in his capacity as assignee from the judgment-creditor. That fact must be brought to the notice of the judgment-debtor and he should also be asked to show cause why the assignee should not be allowed to execute the decree, and that is exactly what these notices purport to do. They do ask the judgment-debtors to show cause why the transferee of the decree should not be allowed to execute it along with the judgment-creditor. It is contended that separate notices ought to have been given under Rule 16 as well as Rule 22. I am unable to accept that contention, and I agree with the decisions in Mrs. Lall v. Rajkishore Narain Singh (1933) I.L.R. 13 Pat. 86, as well as Jamuna Das v. Bainjnath Prashad [1934] A.I.R. Pat. 9, in which it is held that the issue of a combined notice under Order XXI, Rule 16, as well as Rule 22, on the judgment-debtor may be sufficient. It is further held that where the assignee files a darkhast and sends a notice to the judgment-debtor under Order XXI, Rule 22, and not under Rule 16, and if the judgment-debtor does not produce evidence challenging the assignment, the assignee is entitled to proceed with the execution without proving the assignment in his favour. In the present notices, however, the fact of the assignment in writing has been clearly stated and the judgment-debtors were asked to show cause. Not only did they not do so, but thereafter notices were ordered to issue under O, XXI, Rule 66, for the proclamation of sale of the property. That darkhast, however, was not prosecuted further, and therefore it came to an end. The next darkhast of 1927 was filed by the transferee himself and notices were ordered to issue under O, XXI, Rule 66, on the judgment-debtors for selling the property. To avoid the sale, the judgment-debtors paid the sum of Rs. 270 for the whole of the claim in the darkhast and it was disposed of.

6. It is urged that in that dairkhast no notice was given of the assignment. But if the judgment-debtors did not take any objection to the assignment in the first darkhast of 1926, it was in no way incumbent on the darkhastdar to give any notice under Rule 16 in any of the subsequent darkhasts. The succeeding darkhasts were also given by the transferee alone, but they became infructuous.

7. The question is whether the judgment-debtors are now entitled to urge the point that the assignment aught to be proved. Now, it is clear that it was not incumbent on the transferee to produce the deed of assignment if it was not challenged by the judgment-debtors. It was his case that there was a deed in writing although it was not registered and it is said to have been lost. It appears that another registered deed of assignment has been taken in 1936, but that of course would not avail the darkhastdar with regard to his previous darkhasts. The lower appellate Court has held that the effect of the judgment-debtors not having raised any objection as to the excitability of the darkhast of 1926 is that no objection as to the assignment could be urged in any of the succeeding darkhasts, and I agree with that view. The effect of not raising any objection is that the darkhastdar becomes the decree-holder and as such he has got the right to execute the decree. I may state here that the decision in Umamoyee Dasya v. Jatan Bewa (1927) I.L.R. 54 Cal. 624, which is relied upon on behalf of the appellant, is distinguishable from the facts of the present case It was there held that the execution of a decree by the assignee of the decree without service of the necessary notice on the assignor of the decree is not merely irregular, but unlawful and the judgment-debtor is entitled to get the benefit of such illegality, though he might have notice of such assignment. In that case there was notice under Rule 22, and it was held that even if the notice under Order XXI, Rule 22, can be taken to be in effect one under Rule 16 on the judgment-debtor, it was plain that there was no notice on the assignor of the decree as the rule requires. In the present case, there was this notice under Rule 22 which, in my opinion, is as effective as the notice required to be given under Rule 16. I think, therefore, that the facts of the present case are governed by those in Mrs. hall v. Rajkishore Narain Singh (1933) I.L.R. 13 Pat. 86 rather than those in Umamoyee Dasya v. Jatan Bewa.

8. The next point urged on behalf of the appellant is that the deed of assignment requires registration even though the consideration of the deed is stated to be Rs. 90. It is alleged that registration is necessary because the amount due on the mortgage on that date was more than Rs. 100. Reliance is placed on the decision of this Court in Bai Parsan v. Lallubhai (1931) 34 Bom. L.R. 459. I do not think, however, that that decision applies to the facts of the present case. There the consideration of the deed was the marriage of one party with the other, and it was held that as that could not be estimated in money, the test for registration would be the value of the property affected by the deed. In the present case, however, there is a pecuniary consideration stated in the deed of assignment itself, and therefore, it is that consideration which would form the test for the purpose of registration under Section 17 of the Indian Registration Act, as held in Satra Kumaji v. Visram Hasgavda (1877) I.L.R. 2 Bom. 97 and Subramaniam v. Perumal Reddi (1895) I.L.R. 18 Mad. 454. It is not necessary to pursue this point further, because in my opinion the point as to whether the deed of assignment requires registration or not ought to have been taken by the judgment-debtor in the previous darkhasts of 1926 as well as 1927, and as it has not been taken, the judgment-debtor is barred by the principle analogous to res judicata from raising that contention at the present time. A similar decision was given in Mumtaz Ahmad v. Sri Ram (1913) I.L.R. 35 All. 524 where the point about registration was not raised at the proper time but was sought to be raised in a subsequent darkhast. There also the judgment-debtor was served by substituted service as one of the judgment-debtors has been served in the present case, and still it was held that the judgment-debtor was barred on account of the point having not been taken in the previous darkhast. There is no doubt in my mind that the principle of constructive res judicata applies in the present darkhast. As has been held in Gadigappa v. Shidappa (1924) I.L.R. 48 Bom. 638 it was, in my opinion, necessary for the judgment-debtor to take up this point about registration as well as about the deed of assignment being not valid, in the darkhast of 1926 as well as 1927, and that having been not done, it is too late for the judgment-debtors to urge it in the present darkhast.

9. I think, therefore, that the order of the lower appellate Court allowing the darkhastdar to proceed with the darkhast is correct and must be confirmed. The appeal is dismissed with costs.


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