KRISHNA PAI Vs. THRINETHRAN VALIYATHAMPRAKKAL

JUDGEMENT

(1.) This second appeal arises from an order in execution of a decree. The relevant facts may be stated as follows:

(2.) The decree dated 17.7.1111 which was a registered one, was assigned by the decree holder to the appellant, by deed dated 16.5.1116 and the latter applied for execution on 13.8.1116. Notice under O.21, R.14 of the Travancore Code of Civil Procedure (corresponding to R.16 of the Indian Code of Civil Procedure) was ordered to the original decree holder and the judgment debtors, after several infructuous attempts, notice was served by affixture. No objection was filed by the decree holder or the judgment debtors and on 30.7.1117, the court ordered notice under O.21, R.20 (corresponding to R.22 of the Indian Civil Procedure Code). These were duly served and an order was passed on 7.10.1117 posting the case to 29.10.1117 for taking further steps in execution. The appellant did not apply for further steps and the execution petition was dismissed on the same day. The appellant made a second application for execution on 15.4.1121 applying for impleading the heirs of the 2nd defendant and praying for sale of the property charged under the decree. The 2nd defendant's heirs were impleaded as additional defendants 3 to 6. Notice was served on them but on 14.8.1121 the execution petition was dismissed on the ground that an order for fresh notice to the 1st defendant had not been complied with. The third execution petition was filed on 13.3.1122 for sale of the charged property and for attachment and sale of 2nd defendant's properties. On this, the court ordered that the appellant should apply to get himself impleaded as additional decree holder. In compliance with this order, an application was made on 13.4.1122. Notice regarding the assignment was again ordered on the same day. The notice to the original decree holder was returned unserved and the execution petition was dismissed on 27.11.1122, as the appellant failed to comply with an order to pay the requisite process fees for issue of fresh notice. The assignee again applied for execution on 7.3.1124 but it was dismissed the same day, holding that he had not been impleaded. On 30.3.1124, he applied for execution when it was ordered that he should amend the execution petition and produce an affidavit. This execution petition was "struck off" on 2.5.1123. The last execution petition was filed on 30.5.1124 and it was held to be barred by limitation by an order dated 6.3.1125 on the ground that the order dated 27.11.1122 was a judicial order. On appeal by the assignee, the first court's order was confirmed. The assignee has preferred this second appeal.

(3.) The point urged on behalf of the appellant was that an order recognising the assignment was not necessary and that by ordering notice under O.20, R.20 and thereafter ordering further steps to be taken on the execution petition dated 13.8.1115 the Court had allowed the assignee to execute the decree. As stated earlier, notice had been issued on this execution petition to the original decree holder and the judgment debtors regarding the application by the assignee of the decree and as they did not object to the execution by the assignee notice under O.21, R.20 was issued and duly served on the judgment debtors. Thereafter the case was posted for taking further steps. In effect, the court allowed the assignee to execute the decree. All that is necessary under this rule is that the transferee should merely file his application for execution of the decree, stating either in it or in an affidavit that he is the transferee. Thereupon the court issues notice to the decree holder and judgment debtor. The notice which is required by the first proviso is not notice of assignment but notice of the application for execution of the decree by the assignee. On hearing the objections, if any, the Court orders the application for execution to proceed or rejects it. In this case the court ordered execution to proceed as could be seen from the orders on the execution petition dated 13.8.1115. It was held by Mukherji, J. in Brajabashi Hodak v. Manik Chandra ( AIR 1927 Cal. 694 ).