1. This is an appeal against an order of the District Judge of Khulna setting aside the dismissal of an execution case and directing the Court of first instance to proceed with the case. The application for execution was filed by the purchaser of the decree Under Order 21, Rule 16. This judgment-debtor filed an objection Under Section 47, Civil P. C, and contended that the purchase was a sham and paper transaction and the purchaser had no right to put the decree into execution because the judgment-debtor had got a cross-decree for a larger sum against the transferee decree-holder. The trial Court held that under the provisions of Section 49 and Order 21, Rule 18, Civil P. C., a decree for a less amount could not be executed even by a purchaser of the decree. He also mentioned that on the evidence he was not satisfied that the alleged purchase by the applicant was a bona fide one for consideration. The learned District Judge has held that:
Order 21. Rule 18 merely lays down the manner of disposal of two execution cases arising out of cross decrees for the payment of two different sums of money; and it does not furnish any law for the dismissal of an execution case arising out of a money decree, if a cross-decree of a higher amount might be existing against the applicant and is under execution from before for the whole amount.
2. As in this case, ha held, the two decrees were not under execution in the same Court; at the same time it was not a casa of set off and therefore the decree for the small amount which was under consideration should be executed. He also states that he is unable to uphold the finding of the Court of first instance that the assignee of the decree was not a bona fide purchaser for consideration having regard to the manner in which it has been arrived at without a proper discussion of the evidence on the point. Accordingly he set aside the order of dismissal of the execution case.
3. The decree in question is that in the execution case No. 88 the sale of the decree took place on 12th August 1930. The execution case was registered on 27th April 1931 and the objection Under Section 47 with which we are dealing was filed on 11th July 1931. The execution case for a larger amount, namely, case No. 224 was started on 18th July 1930, the date of the original decree having been 25th November 1924 (the other decree being dated 1st June 1925) and in execution of the decree the sale took place on 15th December 1930. An application was made to set aside the sale on 14th June 1931 and on 26th August 1931 the sale was set aside. On 18th April 1932 the second sale took place on 15th December 1932, the sale of lot No. 1 was confirmed and on 20th January 1933 a writ for the delivery of possession was issued. It is to be noted that the decree in execution Case No. 88 was in existence at the time when the execution case No. 224 was started. It is clear from the record that the assignor of the decree in execution case No. 88 was fully aware at the time when he assigned the decree of the execution case pending against him and it was open to him in that case to put forward a prayer for set off. It is true that it was the duty of the decree-holder to mention in his application for execution the fact that there was a cross-decree against him but there does not seem to be any reason why when the Court became aware of the fact that there were two execution cases pending before it at the same time there should not be a set off Under Order 21, Rule 18. Under Clause 2 of that rule, the rule applies in the case of an assignee and though at the time the execution case was filed by assignee the sale in execution of the decree in case No. 224 had not been set aside still at the time when the objection Under Section 47 was filed there was an application to set aside the sale and before this objection was disposed of the sale had been set aside and therefore the execution case No. 224 was pending; simultaneously with case No. 88. In these circumstances the conditions requisite for the application of Order 21, Rule 18 were present in the case; there were two decrees pending for execution in the same Court at the same time. Under the circumstances the decree-holder in the case No. 224 was entitled to set off.
4. As to the bona fides of the assignment the probabilities are entirely against the assignor. The assignor was perfectly aware at the time of the assignment that this judgment-debtor had a decree for a much larger amount pending against him for execution and instead of claiming set off he made the assignment to the assignee. I think there is no reason to question the finding of the trial Court that the assignment was not bona fide.
5. Under the circumstances the objection Under Section 47 should be allowed and the order of the trial Court should be restored. We make no order as to costs of this appeal.