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Sreenath Das Vs. Achutananda Mahanti - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in6Ind.Cas.262
AppellantSreenath Das
RespondentAchutananda Mahanti
Excerpt:
- .....by section 232 of the code of civil procedure, were ordered to be issued upon the transferor decree-holder, and the judgment-debtors. after such notices were issued, it was found by the court (and so it has also now been found) that service was effected upon the judgment-debtors; but no notice was served upon the transferor. thereupon the court ordered a fresh notice to be issued to him. but the applicant did not put in the necessary fees, and the result was that his application was dismissed on the 18th december 1895. subsequently he presented other applications for the execution of the decree, some of which were dismissed for reasons which we need not go into. but upon the last application, that is, the application with which we are now concerned, processes were taken out for the.....
Judgment:

Civil Procedure Code (Act XIV of 1882), Section 232 - Decree, assignment of--Execution by assignee--Notice to transferor and to judgment-debtor.

1. This appeal arises out of an application for execution of a decree.

2. It appears that the decree was obtained by a third party, and the applicant, alleging himself to be the assignee of the decree-bolder, presented an application for the purposes of executing it. Thereupon notices, as provided by Section 232 of the Code of Civil Procedure, were ordered to be issued upon the transferor decree-holder, and the judgment-debtors. After such notices were issued, it was found by the Court (and so it has also now been found) that service was effected upon the judgment-debtors; but no notice was served upon the transferor. Thereupon the Court ordered a fresh notice to be issued to him. But the applicant did not put in the necessary fees, and the result was that his application was dismissed on the 18th December 1895. Subsequently he presented other applications for the execution of the decree, some of which were dismissed for reasons which we need not go into. But upon the last application, that is, the application with which we are now concerned, processes were taken out for the attachment and sale of certain properties of the judgment-debtors. Thereupon, the judgment-debtors put in an objection stating, among other matters, that the whole of the proceedings were bad in law, because neither the transferor nor they (the judgment-debtors) were served with any notice under Section 232 of the Civil Procedure Code; and that there was no order of the Court in 1895 allowing execution to proceed. This objection found favour with the Court of first instance; but the learned District Judge on appeal has come to a different conclusion. He has, no doubt, found, as already indicated, that the notice issued by the Court in 1895 was served upon the judgment-debtors and, proceeding upon that footing, he seems to be of opinion that it is not open to the judgment-debtors to raise the objection which they have now raised; and that, therefore, the proceedings taken by the decree-holder could not be regarded as bad in law.

3. Section 232 of the Code of Civil Procedure provides that if a decree be transferred by assignment from the decree-holder to any other person, the transferee may apply for its execution to the Court which passed it provided that '(a) where the decree has been transferred by assignment, notice in writing of such application shall be given to the transferor and the judgment-debtor, and the decree shall not be executed until the Court has heard their objection (if any,) to such execution' and so on. Now, it will be observed that the service of notice, as contemplated by this section, both upon the transferor and judgment-debtor is a condition precedent to the execution of the decree, and the law is peremptory when it says that a decree shall not be executed until the Court has heard the objections, if there be any, to such execution. In the present case, as has already been mentioned, the decree-holder was not served with any notice, and, therefore, he had no opportunity of preferring his objections. Necessarily, the Court could not deal with his objections; nor was there any order (and the Court could not make any such order in the circumstances) directing execution to proceed. On the contrary, we have it that the application then made by the assignee of the decree was dismissed, because he did not put in the necessary fees to enable the Court to serve notice upon the transferor. That being so, it seems to us that though it may be as it appears to have been found, that the judgment-debtors were served with the notice issued by the Court under Section 232, yet it was not competent to the Court to order the execution to issue in the circumstances. It seems to us that this matter was lost sight of when the Court to which the subsequent applications were made ordered execution to proceed. Upon these occasions no notice was served upon the decree-holder nor upon the judgment-debtors, and evidently, because notice had been issued to and served upon judgment-debtors in 1895, the Court, upon the last application of the applicant, proceeded to order the attachment and sale of the properties belonging to them.

4. We think that the whole of the proceedings in this case were bad in law. The result, therefore, is that the order of the District Judge must be set aside, and that of the Munsif, so far as it holds that execution cannot proceed upon the application made by the applicant on the 4th June 1896 restored.

5. We advisedly do not deal with the question raised by the Judgment-debtors that the assignment of the decree by the original decree-holder was a benami transaction.

6. We make no order as to costs.


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