1. This appeal arises out of execution proceedings under the following circumstances.
2. An Insolvency Court, namely, the District Judge of Gorakhpur, passed a decree against the appellant Ram Charan Bahu in order that some money, belonging to the judgment-debtor which he had realized, he might replay. That decree having been passed, the receiver, Babu Raghubar Prasad, transferred the decree to the opposite party, Salik Ram. Salik Ram, having obtained an assignment applied for execution and obtained an order of transfer of the decree to the Court of the Subordinate Judge of Azamgarh. In that Court, for the first time, Ram Charan Sahu raised the objection that the decree that had been passed by the Insolvency Court was a nullity. That objection having failed, he preferred an appeal to the District Judge.
3. The District Judge held that the Court which passed the decree had recognized the title of Salik Ram to execute the decree and that it was not open to the Court at Azamgarh to go behind that order.
4. In this Court in the memorandum of appeal not a word has been said as to why this view of the learned District Judge was unsound. The appellant in the memorandum of appeal reiterates his objection to the validity of the decree as it was passed.
5. Under Order 21, Rule 16 of the Civil Procedure Code, when a transferee applies for execution of a decree, a notice as to be issued to the judgment-debtor to show cause why the execution should not be granted. The Court is directed not to execute the decree till the objection of the judgment-debtor has been heard. Evidently it was the order which allowed execution that is mentioned by the learned District Judge in his Judgment. According to a ruling of this Court namely Taj Singh v. Jagan Lal (1961) 36 All. 289 the order allowing execution operates as res-judicata.
6. In our opinion, so long as the order allowing execution of the decree at the instance of Salik Ram stands, the appellant cannot be heard to say that the decree is not executable. When the notice was sent to him, that was the time when the appellant should have raised the objection as to why the execution should not be granted.
7. The appeal fails and is hereby dismissed with costs which will include counsel's fee in this Court on the higher scale.