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The Bank of Morvi, Limited Vs. R.P. Wagle and Co. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Case NumberO.C.J. Suit No. 3693 of 1932
Judge
Reported inAIR1941Bom190; (1941)43BOMLR266
AppellantThe Bank of Morvi, Limited
RespondentR.P. Wagle and Co.
Excerpt:
.....decree--stage at which objections of judgment-debtor to decree may be considered--revival of decree-notice--procedure. ;where an application for execution of a decree is made by a transferee of the decree, he has to establish his title, and he has therefore to make an application under order xxi, rule 16, civil procedure code, 1908, to the court that passed the decree. on a notice being issued on this application, the court has to decide whether the applicant is the person entitled to execute the decree. the extent of his right, and the conditions on which the asignee may proceed with the execution are not touched by this decision; nor does the court decide how far the decree can be executed or the objections, if any, to the decree being executed. if the notice under order xxi,..........in the same manner and subject to the same conditions as if the application were made by such decree-holder.' it is therefore clear that by the notice being made absolute the court does not decide how far the decree can be executed or the objections, if any, to the decree being executed. it only decides that the decree may be executed as if the application were made on behalf of the decree-holder himself. the reported decisions show that whilst deciding the application under order xxi, rule 16, the courts have heard and decided objections to the application for execution under order xxi, rule 11. bearing in mind that the judgment-debtor is entitled to be heard and his objections decided at some stage before the court permits an administrative order to be made on the application.....
Judgment:

Kania, J.

1. This is an application under Order XXI, Rule 16, Civil Procedure Code, by the assignee of the decree.

2. The decree was originally passed in November, 1924, for Rs. 15,000, payable by two instalments of Rs. 10,000 on February 1, 1926, and Rs. 5,000 on February 1, 1927. Defendant No. 2 died on February 7, 1926. The decree was assigned to the first assignees on December 7, 1931, who in their turn assigned it to the second assignee on March 19, 1935. On the decree a payment of Rs. 100 made on July 2, 1936, and another of Rs. 500 made on February 27, 1939, are certified. The assignee has made his application under Order XXI, Rule 16.

3. From the facts it is clear that another application under Order XXI, Rule 22, is required to be made before an order can be made for execution in respect of the application made under Order XXI, Rule 11.

4. The fact of the assignment and the right of the assignee to execute the decree by virtue of his assignment are not disputed. Various objections were raised by the legal representatives of the second defendant. They are summarised in para. 2 of his affidavit to show cause. It is also contended that execution of the decree is now time-barred, and that satisfaction of the decree has been effected which is not certified on the decree. In my opinion the different objections raised against this application cannot be entertained at this stage.

5. When an application for execution is made by a transferee, not being a person in whose favour the decree is passed, he has to establish his title in the first instance. Order XXI, Rule 16, therefore, requires that he must make an application to the Court that passed the decree, as distinct from the Court which would execute the decree. The rule is that the transferee may apply for execution of the decree to the Court which passed it. Although the words do not expressly say so, it means that on the notice being issued on this application the Court will decide if the applicant is the person entitled to execute the decree. The extent of his right and the conditions on which he may in fact proceed with the execution are not touched by this decision. This fact is emphasized by the last sentence in the first part of Rule 16 of Order XXI which runs as follows: '... and the decree may be executed in the same manner and subject to the same conditions as if the application were made by such decree-holder.' It is therefore clear that by the notice being made absolute the Court does not decide how far the decree can be executed or the objections, if any, to the decree being executed. It only decides that the decree may be executed as if the application were made on behalf of the decree-holder himself. The reported decisions show that whilst deciding the application under Order XXI, Rule 16, the Courts have heard and decided objections to the application for execution under Order XXI, Rule 11. Bearing in mind that the judgment-debtor is entitled to be heard and his objections decided at some stage before the Court permits an administrative order to be made on the application under Order XXI, Rule 11, it appears that the Courts proceeded to decide the questions when disposing of the application under Order XXI, Rule 16. In the present case the situation is different. On this notice being made absolute the only right which the transferee will acquire will be the same as if the application for execution were made by the decree-holder. He will be permitted to execute the decree in the same manner and subject to the same conditions as if the application were made by the decree-holder himself. As the decree has to be revived under Order XXI, Rule 22, all the objections of the judgment-debtor to the execution of the decree will be considered when the notice under Order XXI, Rule 22, is issued to him and comes for hearing. If the decree-holder himself were making the application to-day under Order XXI, Rule 11, the objections of the judgment-debtor would not be disposed of on any application except the one made under Order XXI, Rule 22, and of which notice would be given to the judgment-debtor. The fact that the transferee wants to execute the decree does not in any way alter the position. The objections to the execution of the decree will be heard and disposed of when notice under Order XXI, Rule 22, is issued and comes for decision. In Baijnath v. Binjraj: In re Jankiprasad (1936) 39 Bom. L.R. 540. B.J. Wadia J. had occasion to consider the effect of Order XXI, Rules 11, 16 and 17, and the learned Judge observed as follows (p. 544):

In my opinion the procedure to be followed in making an application under Order XXI, Rule 16, falls under two heads. The transferee must first apply for execution of the decree to the Court which passed it, and pray that the usual notices do issue. After the objections have been heard and the notice is made absolute, the decree may be executed by the transferee in the same manner and subject to the same conditions as if the application was made by a decree-holder. The transferee must then apply for execution of the decree under Order XXI, Rule 11, specifying the mode or modes in which assistance of the Court is required.

These observations clearly show that after the notice under Order XXI, Rule 16, is made absolute the transferee acquires a right to execute the decree in the same manner and subject to the same conditions (which are the words used in rule 16) as the decree-holder himself had.

6. Mr. Desai referred to certain observations in cases where it appears to be stated that the effect of Rule 16 is to bring the transferee on record. Expressions used in judgments, as has been repeatedly observed, have to be read with the facts of that case. In spite of his best endeavours counsel has been unable to point out any case in which two steps, as in the present case, had to be taken by the transferee before he could obtain an order for execution.

7. The result is that this notice under Order XXI, Rule 16, is made absolute. The objections of the legal representatives of the original second defendant raised on this application will be considered and dealt with when the notice under Order XXI, Rule 22, comes to be disposed of. There will be no order as to costs.


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