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indrajit Choubey and anr. Vs. Sitaram Agarwalla and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Case NumberA.F.O.O. No. 77 of 1964
Judge
Reported inAIR1971Cal160,74CWN938
ActsCode of Civil Procedure (CPC) , 1908 - Order 22, Rules 10 and 12
Appellantindrajit Choubey and anr.
RespondentSitaram Agarwalla and ors.
Appellant AdvocateSambhunath Banerjee and ;Madhusudan Banerjee, Advs.
Respondent AdvocateRanjit Kumar Banerjee and ;Asoke Kumar Sengupta, Advs.
DispositionAppeal dismissed
Cases Referred(vide Hem Chandra Banerjee v. Annapurna Debi
Excerpt:
- .....which arises for decision in this appeal is whether the claimants, under a partition of the decree-holder's interest can apply to continue the execution proceedings, started by the decree-holder.3. the learned trial judge allowed the said application upon the view that the said claimants would be entitled to the relief, prayed for by them, under order 21, rule 16 of the code of civil procedure, read with section 146. the judgment-debtors contend that, as, in the instant case, there was no notice given of the alleged assignment by partition, as required by the proviso to order 21, rule 16, the said provisions cannot aid the present respondents.4. this aspect of the matter may not be altogether free from difficulty and the point whether, on partition, there is really any assignment,.....
Judgment:

P.N. Mookerjee, J.

1. This appeal is by the judgment-debtors and it arises out of a proceeding for execution of a decree.

2. The question, which arises for decision in this appeal is whether the claimants, under a partition of the decree-holder's interest can apply to continue the execution proceedings, started by the decree-holder.

3. The learned trial Judge allowed the said application upon the view that the said claimants would be entitled to the relief, prayed for by them, under Order 21, Rule 16 of the Code of Civil Procedure, read with Section 146. The judgment-debtors contend that, as, in the instant case, there was no notice given of the alleged assignment by partition, as required by the proviso to Order 21, Rule 16, the said provisions cannot aid the present Respondents.

4. This aspect of the matter may not be altogether free from difficulty and the point whether, on partition, there is really any assignment, may not be altogether free from controversy. We do not, however, think that it is necessary for us, for purposes of this case, to go Into that question, as, in our view, the present matter would be covered by Order 22, Rule 10 of the Code of Civil Procedure, as it is now well established that the said rule applies to execution proceedings, (vide Krishnaji Ramchandra Koshti v. Bhikchand Ramkaran Marwadi, ILR 1941 Bom 629 = (AIR 1942 Bom 82); Manmohan Dayal v. Kailash Nath, : AIR1957All647 ; Mahimuddin v. Panu Sahani. : AIR1952Ori64 ; Ajodhya Lal Mohaseth v. Mahanth Brij Kishore Dass, AIR 1940 Pat 615 and the Bench decision of this Court; Tara Prasanna Ganguly v. Naresh Chandra Chakrabulty, 37 Cal WN 494 = (AIR 1933 Cal 329). It is true that, in an earlier Bench decision of this Court, some doubt was expressed on the point (vide Hem Chandra Banerjee v. Annapurna Debi, 36 Cal WN 93 = (AIR 1932 Cal 423); but the same cannot prevail against the above preponderance of judicial authority. On an examination of the relevant statute also, namely, the Code of Civil Procedure, we are ourselves of the opinion that the said statutory provision (Order 22, Rule 10) will apply to execution proceedings, as it is not excluded by the excepting or excluding rule (Order 22, Rule 12).

5. In the above view, we would hold that the respondents' application to continue the execution proceedings, on substitution in place of the decree-holder, has been rightly allowed by the learned trial Judge and we affirm his decision.

6. The appeal, therefore, fails and it is dismissed. There will, however, be no order for costs.

Amiya Kumar Mookerji, J.

7. I agree.


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