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Sarat Chandra Das Vs. Jnanendra Nath Chakravarti and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1938Cal401
AppellantSarat Chandra Das
RespondentJnanendra Nath Chakravarti and anr.
Excerpt:
- .....obtained a decree against debendra. jnanendra took out execution proceedings and attached the decree obtained by debendra. debendra then sold his decree to the appellant and the appellant started execution proceedings. in the course of those proceedings, two objections were filed under section 47, one by jnanendra on the basis of his attachment and the other by hara kumar attesting the bona fides of the sale by debendra to the appellant. the munsif allowed both the objections and dismissed the execution case. this order was upheld in the district court and the appellant has now brought this second appeal.2. the respondent hara kumar has not appeared at the hearing in this court. in view of the attachment made by the other respondent he probably realized that no useful purpose would.....
Judgment:

Henderson, J.

1. This is an appeal against an order made by the Courts below which allowed an objection under Section 47, Civil P.C. which was made by respondent 1 Jnanendra. The facts which require to be noted are these : One Debendra obtained a decree against Hara Kumar, respondent 2. Respondent 1 Jnanendra obtained a decree against Debendra. Jnanendra took out execution proceedings and attached the decree obtained by Debendra. Debendra then sold his decree to the appellant and the appellant started execution proceedings. In the course of those proceedings, two objections were filed under Section 47, one by Jnanendra on the basis of his attachment and the other by Hara Kumar attesting the bona fides of the sale by Debendra to the appellant. The Munsif allowed both the objections and dismissed the execution case. This order was upheld in the District Court and the appellant has now brought this second appeal.

2. The respondent Hara Kumar has not appeared at the hearing in this Court. In view of the attachment made by the other respondent he probably realized that no useful purpose would be served by opposing this appeal. Another point to be noted is that the decree obtained by Jnanendra against Debendra is for a sum of money larger than that obtained by Debendra against Hara Kumar. The learned Advocate for the appellant indicated that no benefit would accrue to his client unless he could execute for himself alone. He therefore did not take the point that even in view of the findings of the Courts below with regard to the attachment they were wrong in dismissing the execution case in toto inasmuch as the appellant would be allowed to execute subject to the rights of Jnanendra. It is therefore not necessary to deal with this aspect of the case.

3. In support of this appeal, it is contended that the attachment made by the respondent has become ineffective, because no notice was served upon Debendra previous to the sale by Debendra of his decree to the appellant. In support of this argument reliance was placed upon Sub-clause (6) of Rule 53, Order 21. That provision of the law affords no help to the appellant at all. Its purpose is clear. It is to protect payments made by the judgment-debtor of the attached decree to his creditor before he receives notice of the attachment. While it was necessary under this sub-clause for respondent 1 to give notice to respondent 2, it was not necessary for him to give notice to the appellant's vendor.

4. Nor is Sub-clause (4) of any avail to the appellant. There, provision is made for service of a notice on the judgment-debtor in cases where the decree is to be sold. It is then perfectly reasonable that such a notice should be served prohibiting the judgment-debtor from transferring or charging the decree. But the present case comes within sub-clause (1) and respondent 1 is entitled by the attachment to execute Debendra's decree himself. There would therefore be no object in serving a notice on the judgment-debtor Debendra and the mere fact that Debendra sold his decree to the appellant after the attachment would not prevent Jnanendra from executing the decree himself. The appeal accordingly fails and is dismissed with costs. Hearing fee two gold mohurs.


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