1. The Kayastha Bank had a decree against Ashfaq-ullah. Babu Dwarka Das applied for execution on 2nd November, 1918 for the first time on the ground that, the decree had been transferred to him by the Manager of the Bank acting on behalf of the Bank on 6th September,1918. On 3rd February, 1919, Dwarka Das's name was substituted. On 4th February, 1919, he applied for execution and this application was struck off. Another application was made on 12th April, 1920, with the same result. On 16th June, 1920, he applied again and during the pendency of this application Ashfaq-ullah paid Rs. 400 on 18th January, 1921, and at the same time prayed that, the money might not be paid to the decree-holder as he desired to object to the transfer in favour of this decree-holder, Dwarka Das. The execution application, however, was dismissed after part satisfaction without any direction that the money may not be paid to the decree-holder. On 26th October, 1922, another application for execution was filed by Dwarka Das whereupon Ashfaq-ullah objected that the Manager had no right to transfer the decree on behalf of the Bank and that the transfer being made in consideration of a personal debt due by the Manager to Dwarka Das was not valid. The Trial Court of the Subordinate Judge dismissed this objection on 17th March, 1923, on the ground that it was too late for Ashfaq-ullah. to raise such an objection after so many previous applications for execution. Practically it held that the question as to the validity of the transfer was res judicata. In appeal the learned Judge disagreed with this finding and further held that the Manager was not entitled to make the transfer on behalf of the Bank and that the transfer had not been subsequently ratified by the Bank.
2. In our opinion the question of law was correctly decided by the Trial Court. We are supported in this opinion by Division Bench rulings of this Court in Mumtaz Ahmad v. Sri Ram (1913) 35 All. 2547 and Taj Singh v. Jagan Lal (1916) 38 All. 289. The provisions of Section 11 of the Code of Civil Procedure are not expressly made applicable to execution proceedings, but the principles are applicable and if a point has been directly or by implication decided in any particular execution proceeding the point cannot be raised subsequently. The lower Appellate Court hag quoted in favour of its opinion a judgmant of a single Judge of this Court in Kalian Singh v. Jagan Prasad (1915) 13 A.L.J. 162 which was confirmed by a Division Bench is Letters Patent Appeal as reported at page 823 of the same volume. There, however, the question was one of the amount due on the decree and that question had not been specifically decided at any time by the execution Court. In the present case as we have seen Dwarka Das applied on 2nd November, 1918 under Order 21, Rule 16 for the substitution of his name. Such a substitution could not ha made without intimation to the judgment-debtor and the decree is not executed until the Court has heard the objection, if any by the judgment-debtor. The presumption will be that the Court proceeded according to law and that notice wa3 issued to Ashfaq-ullah. A definite order of substitution of name was passed by the executing Court. If the order was passed ex parts it was open to Ashfaq-ullah to have it set aside, Further, on 18th January, 1921 Ashfaq-ullan applied to the Court that the money deposited by him may not be paid to the decree-holder on the ground that the decree-holder was not a rightful transferee. This application was not granted. This also amounted to a finding that Dwarka Das was a transferee who can execute the decree. Under the circumstances we are of opinion that the principle of res judicata will apply hare.
3. The appeal succeeds on this point; otherwise we would have remanded it to the lower Appellate Court. The learned Judge of that Court has proceeded on evidence which is not on the record when ha decided the issue of fact. Ha has referred to certain memorandum and Articles of Association and a power of attorney which documents or copie3 thereof are not on the file. As to consideration also ha is in error that the transferee Dwarka Das was bound to prove the validity of the consideration paid by him. As however we have held that Dwarka Das can execute the decree and as the point is now res judicata we shall not discuss the question of authority of the Manager of the Bank to make the transfer.
4. I agree with my learned brother that the objection of judgment-debtor could not be entertained. I wish only to add that having regard to the entire schema of Order 21, Rule 16 of the Code of Civil Procedure it was incumbent on the judgmant-debtor when he received the notice of the application for execution made by the assignee of the decree-holder to have coma forward and raised any objection that ha may have had to the execution of the decree by the assignee. An execution proceeding is always a lengthy one and various applications can be made within the course of 12 years. It is therefore necessary to decide where there is a transfer by the decree-holder whether the transferee is entitled to execute the decree or not. If after, say, nine years of execution the judgment-debtor should coma forward and say that the transferee had no right to execute the decree the result would be simply disastrous. The law therefore insists on the assignee's application for execution not being proceeded with until the judgment-debtor has bean served with a notice and ha has had opportunity to raise objections if ha has any. If it be the case that the judgment-debtor had no intimation of the original application it was his duty to coma forward and make an application to sat aside the order for executing the decree. So long as the order for execution of the decree stands, having been passed after notice to the judgment-debtor, it does not lie in his mouth to come forward and say, in the teeth of the order, that the decree-holder has no right to execute the decree. The authorities directly on the point are all one way and some of the cases have been cited in his judgment by my learned brother. I agree in the order proposed.
5. We set aside the decree of the lower Appellate Court and restore the order of the trial Court dismissing the objection of the judgment-debtor with costs including fees here on the higher scale. We direct that execution proceedings do continue in the trial Court as from date 17th March, 1923.