1. The Kayastha Bank had a decree agamst Ashfaqullah. 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 DwarkaDas'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 Ashfaqullah 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 Ashfaqullah 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 Ashfaqullah 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 31 Ind. Cas. 462 : 11 A.L.J. 815 : 35 A. 524 and Taj Singh v. Jagan Lal 35 Ind. Cas. 234 : 14 A.L.J. 370 : 38 A. 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 has quoted in favour of its opinion a judgment of a single Judge of this Court in Kalian Singh v. Jagan Prasad 27 Ind. Cas. 950 : 18 A.L.J. 162 which was confirmed by a Division Bench in Letters Patent appeal as reported at Kalyan Singh v. Jagan Prasad 80 Ind. Cas. 623 : 13 A.L.J. 828 : 37 A. 589 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 XXI Rule 16 for the substitution of his name. Such a substitution could not be 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 was issued to Ashfaqullah. A definite order of substitution of name was passed by the executing Court. If the order was passed ex parte it was open to Ashfaqullah to have it set aside. Further, on 18th January 1921 Ashfaqullah 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 here.
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 he decided the issue of fact. He has referred to certain memorandum and Articles of Association and a power of attorney which documents or copies thereof are not on the file. As to consideration also he 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 the judgment-debtor could not be entertained. I wish only to add that having regard to the entire scheme of Order XXI, Rule 16 of the Code of Civil Procedure it was incumbent on the judgment-debtor when he received the notice of the application for execution made by the assignee of the decree-holder to have come forward and raised any objection that he 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 come 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 been served with a notice and he has had an opportunity to raise objections if he has any. If it be the case that the judgment-debtor had no intimation of the original application it was his duty to come forward and make an application to set 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. By the Court.--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.