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Laxminarayan Ramchand Mahajan Vs. Bhera Sitaram Deswali - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtMadhya Pradesh High Court
Decided On
Case NumberMisc. Appeal No. 83 of 1960
Judge
Reported inAIR1962MP379; 1962MPLJ495
ActsLimitation Act, 1908 - Schedule - Article 182(5); Code of Civil Procedure (CPC) - Order 21, Rule 16
AppellantLaxminarayan Ramchand Mahajan
RespondentBhera Sitaram Deswali
Appellant AdvocateS.L. Garg, Adv.
Respondent AdvocateN.L. Maharshi, Adv.
DispositionAppeal allowed
Cases ReferredIn Brajlal v. E. M. Atkinson
Excerpt:
.....batia and company, air 1937 bom 365, it was held that notice under order 21, rule 16 is imperative and failure to give it renders the proceedings in execution void against the transferor and the judgment-debtor. when an application itself cannot be challenged it clearly saves limitation under article 182 (5) of the limitation act......proviso to order 21, rule 16, c. p. c. clearly lays down that the decree cannot be executed unless notice is issued to the transferor, but this only would mean that the application under order 21, rule 16 would not be bad when it was made before the court; but there is an injunction on the court not to execute the same before a notice is issued to the transferor.4. the learned counsel for the appellant has not been able to show me that the application was not according to law excepting for the reasons which i have already mentioned that no notice was issued to the transferor. this objection cannot invalidate the application which was valid in the beginning. issuing a notice to the transferor is a step which has to be taken subsequent to the filing of the application and validity of the.....
Judgment:

S.B. Sen, J.

1. The question involved in this case is very simple but it is of some importance. The decree was passed on 20-2-1952 against one Bhera and in favour of one Madanlal. Madanlal assigned the decree to the present appellant Laxminarayan on 25-3-1953. He filed an application on 15-4-1954. No notice was issued to the transferor-decree-holder but a notice was issued to the judgment-debtor. A warrant was also issued but some how or other it was not executed. The application was dismissed on 11-4-1955. Laxminarayan again filed an application for execution on 14-1-1957. This application has been challenged as barred by time. Both the Courts held in favour of the judgment-debtor. The decree-holder has now come up in second appeal.

2. The main objection is that the previous application dated 15-4-1954 was not an application according to law as no notice was issued to the transferor. It would therefore not give any limitation for filing a fresh execution petition.

3. Proviso to Order 21, Rule 16, C. P. C. clearly lays down that the decree cannot be executed unless notice is issued to the transferor, But this only would mean that the application under Order 21, Rule 16 would not be bad when it was made before the Court; but there is an injunction on the Court not to execute the same before a notice is issued to the transferor.

4. The learned counsel for the appellant has not been able to show me that the application was not according to law excepting for the reasons which I have already mentioned that no notice was issued to the transferor. This objection cannot invalidate the application which was valid in the beginning. Issuing a notice to the transferor is a step which has to be taken subsequent to the filing of the application and validity of the application under Order 21, Rule 16 does not depend on further steps.

5. It may also be noted as a matter of fact in this case that the judgment-debtor had appeared after receiving a notice as required under the proviso. He does not allege to have raised an objection in the earlier application that the transferor should have been noticed nor is there anything to show that the Court had issued the warrant in spite of that objection. In short the judgment-debtor may be said to have waived the objection about the notice to the transferor.

6. It is therefore now necessary to look to the position of law from the cases cited at the bar.

7. Sagarmal v. Abdul Hamid, 1958 MPC 145, does not help the judgment-debtor. It merely lays down that the Court cannot execute the decree unless a notice is issued to the transferor. I have already said the question in the present appeal is whether the application itself was to be considered to be a step-in-aid, as contemplated in Article 182 (5) of the Limitation Act.

8. Prayagdas v. Indirabai, AIR 1948 Nag 189, also does not help the judgment-debtor because it says that if an application is defective it cannot be said to be an application according to law and the amendment to such an application beyond time was not permissible.

9. In Gulzarilal v. Dayaram, ILR 9 All 46, the Division Bench of the Allahabad High Court held :

'Even assuming that a judgment-debtor had a locus standi to raise the objection that notice had not been issued to the applicants 'transferor' he had no possible interest in the question, and could not be prejudiced by the passing of the order.'

10. In a Bombay case in Baijnath v. Binjraj Joowarpal Batia and Company, AIR 1937 Bom 365, it was held that notice under Order 21, Rule 16 is imperative and failure to give it renders the proceedings in execution void against the transferor and the judgment-debtor. But at the same time the High Court was of the view that the transmission of the decree to another Court for execution is not a matter of execution. This is only a ministerial act. An application under Section 39, C. P. C. for transfer of a decree is not an application for execution but at the same time the view of the High Court is that it was an application for step-in-aid of execution.

11. The same High Court has more specifically in Bhagwandas v. Motilal, AIR 1947 Bom 113, held that even if notices as required by the proviso to Order 21, Rule 16 are not issued to the decree-holder and the judgment-debtor, the application does not cease to be in accordance with law, and would come under Article 182 (5) of the Limitation Act, and such an application would be a step-in-aid of execution.

12. The Full Bench of the Bombay High Court in Odhavji v. Sakarchand, AIR 1949 Bom 63 (FB), goes even further and the facts have a look very similar to this case. In that case no notice was issued to the transferor but the judgment-debtor contested the transfer and after hearing the parties in full the Court came to the conclusion that the transfer was in order. The High Court held that the findings of the lower Court with regard to the validity of the assignment and the title of the assignee must stand as they were arrived at after the judgment-debtor's objections were heard.

13. I may mention here that I need not go so far in this case as the point with which I am concerned is whether the application made by Laxminarayan on 15-4-1954 was according to law and could be treated to be a step-in-aid under Article 182 (5) of the Limitation Act.

14. In Brajlal v. E. M. Atkinson, AIR 1920 Pat 146, a Division Bench of the Patna High Court was of the view that a judgment-debtor who fails in an execution proceeding to object to the execution on the ground that notice of transfer of the decree has not been properly served on the transferor, cannot raise the objection in a subsequent proceeding.

15. As I have said so far as assignment is concerned it is not in question before me. The only question before me is whether the application dated 15-4-1954 can be considered to be a step-in-aid. Article 182 (5), Limitation Act reads as follows:

'(Whether the application next hereinafter mentioned has been made) the date of (the final order passed on an application made) in accordance with law to the proper court for execution or to take some step in aid of execution of the decree or order, or ......'

it is clear from the reading of the said article that the application must be according to law and some step must be taken in aid of execution. The application by the assignee is certainly a step in aid of execution. Whether he takes further steps is not very material. When an application itself cannot be challenged it clearly saves limitation under Article 182 (5) of the Limitation Act.

16. The result is the appeal is allowed with costs. Order under appeal is set aside and the case is sent back to the executing Court for disposal according to law. Counsel fee according to scale, if certified.


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