SUNDARABAI BALAPPANAIK CHITGUPPI Vs. GURUSHIDDAPPA GURUBASAPPA BHUSNUR

JUDGEMENT

(1.) THIS appeal arises in execution of a mortgage-decree. It is preferred by one of the judgment-debtors against the respondent who is the transferee of the decree from the original decree-holder. The objections raised by the judgment-debtor against the executability of the darkhast were, firstly, that there was no valid and legal assignment of the decree in favour of the respondent; and, secondly, even though the respondent had joined with the decree-holder in applying for execution in one darkhast of 1926 and applied for execution by himself in subsequent darkhasts, the judgment-debtor was not barred from contending in the present darkhast that the assignment had not been proved, and that even if proved, it was not a valid assignment.

(2.) THE facts leading to these contentions are shortly these:-THE mortgage-decree was passed in March, 1910, for Rs. 200 against two women. THE decree-holder presented several darkhasts thereafter and recovered some amount. THEreafter, he is stated to have assigned his decree to the present respondent by a writing for Rs, 90. After the assignment a darkhast was filed in February, 1926, by the original decree-holder as well as the assignee, A sale proclamation of the mortgaged property under Order XXI, Rule 66, of the Civil Procedure Code, was issued in that darkhast, but thereafter the darkhast was dropped. THEn the next darkhast was filed by the assignee himself in 1927. THE mortgaged property was taken out for sale, and a sum of about Rs. 270 was paid by the judgment-debtors to the transferee, and it was disposed of as fully satisfied. Two more darkhasts were filed by the transferee in 1931 and 1934, and thereafter the present darkhast was filed in August, 1935. In this darkhast the judgment-debtors contended for the first time that the darkhastdar had no right to file this as well as the preceding darkhasts, that there was no writing to evidence the alleged assignment, that even if there was any, it was not valid, and that therefore, the darkhast should be dismissed. THE respondent contended that the judgment-debtors were barred by the principle of res judkata from urging this point in the present darkhast as they did not do so in any of the previous darkhasts. It was further contended that the deed of assignment did not require registration and that he was, therefore, entitled to execute the darkhast.

(3.) THE first point urged by Mr. Gumaste on behalf of the appellant is that no notices had been issued to the judgment-debtors under Order XXI, Rule16. Exhibits 40 and 43 are the notices which have been issued to the two judgment-debtors separately. THE notices purport to have been issued under Order XXI, Rule 22, but the contents of the notices are very much similar to those which are required in a notice under Rule 16. It is stated, among other things, that the assignee of the decree had filed a darkhast on the ground that he had purchased the decree in writing from the decree-holder. I agree with the lower Court in holding that the contents of those notices are substantially the same as are required to be in a notice under Rule 16, and that there is no prejudice to the judgment-debtors simply because the notices purport to have been given under Order XXI, Rule 22. It is true that as that darkhast was filed more than one year after the decree, a notice was required to be given to the judgment-debtors under Order XXI, Rule 22, and a notice was also required to be given to the judgment-debtors under Order XXI, Rule 16. No notice under Rule 16 was necessary to the judgment-creditor, the assignor, inasmuch as he himself had joined in this darkhast. In my opinion, the two notices, exhibits 40 and 43, which have actually been given, are good notices under Order XXI, Rule 16, as well as Rule 22. THE purpose of giving a notice under Rule 16 to the judgment-debtor is to acquaint him with the fact that the darkhastdar purports to execute the decree in his capacity as assignee from the judgment-creditor. That fact must be brought to the notice of the judgment-debtor and he should also be asked to show cause why the assignee should not be allowed to execute the decree, and that is exactly what these notices purport to do. THEy do ask the judgment-debtors to show cause why the transferee of the decree should not be allowed to execute it along with the judgment-creditor. It is contended that separate notices ought to have been given under Rule 16 as well as Rule22. I am unable to accept that contention, and I agree with the decisions in Mrs. Lall v. Rajkishore Narain Singh (1933) I.L.R. 13 Pat. 86, as well as Jamuna Das v. Bainjnath Prashad [1934] A.I.R. Pat. 9, in which it is held that the issue of a combined notice under Order XXI, Rule 16, as well as Rule 22, on the judgment-debtor may be sufficient. It is further held that where the assignee files a darkhast and sends a notice to the judgment-debtor under Order XXI, Rule 22, and not under Rule 16, and if the judgment-debtor does not produce evidence challenging the assignment, the assignee is entitled to proceed with the execution without proving the assignment in his favour. In the present notices, however, the fact of the assignment in writing has been clearly stated and the judgment-debtors were asked to show cause. Not only did they not do so, but thereafter notices were ordered to issue under O, XXI, Rule 66, for the proclamation of sale of the property. That darkhast, however, was not prosecuted further, and therefore it came to an end. THE next darkhast of 1927 was filed by the transferee himself and notices were ordered to issue under O, XXI, Rule 66, on the judgment-debtors for selling the property. To avoid the sale, the judgment-debtors paid the sum of Rs. 270 for the whole of the claim in the darkhast and it was disposed of.