R SARASWATHI Vs. J A JAFRULLA

JUDGEMENT

(1.) THIS Civil Revision Petition is by the judgment debtors, who are respondents 4 and 5 in E.A. No. 1849 of 1986 on the file of the Second Additional Sub Court, Coimbatore, which was filed by the assignee of the decree from the decree holder, praying for recognition of the said assignment. Against the order dated 10-7-1987, in the said E.A., recognising the said assignment, this revision has been filed. One of the contentions of the learned counsel for the petitioners is that such an execution application for mere recognition of the said assignment of the decree is not maintainable under Order 21, rule 16 C.P.C, but that only a regular execution petition should have been filed. The said counsel contended that even the earlier execution petition, viz E.P. 662 of 1980 filed by the original assignor-decree-holder was dismissed on 29.1.1987, and that hence the Court below should not have passed the impugned order dated 10-7-1987 subsequent to the dismissal of the said execution petition.

(2.) NO doubt it has been held in Jugalkishore v. Raw Cotton Co. 1 and Bhagwant Balaji Rao v. Rajaram Pajnaji 2 and other decisions cited by the learned counsel for the petitioners that an application merely for recognition of the assignment is defective. But the very same decisions have also held that the defect is purely technical and may be allowed to be cured by amendment of the application by adding the prayer for execution, mode of execution, etc. The Supreme Court, in the above said decision observed as follows- ?The respondents had in their application for execution filed before the City Civil Court not mentioned any of these particulars but had only stated that the Court should declare them the assignee of the decree.? This defect, however, was not such as to preclude the respondents from obtaining the necessary reliefs. There is also a similar observation in the above said decision in Bhagwant Balaji Rao v. Rajaram Pajnaji 1 .