KRISHNA GOVIND PATIL Vs. MOOLCHAND KESHAVCHAND GUJAR

JUDGEMENT

(1.) THIS is a second appeal from a decision of the District Judge of Belgaum, and has been referred to a full bench, because it raises a question, whether the decision of a bench of this Court in Raghunath Govind v. Gangaram Yesu (1923) I.L.R. 47 Bom. 643, S.C. 25 Bom. L.R. 474, is correct.

(2.) THERE was a decree in this case for maintenance, and the decree-holder assigned certain arrears of maintenance under that decree to the present respondent. The present respondent applied to execute the decree under Order XXI, Rules 11 and 16, of the Civil Procedure Code. The answer made by the judgment-debtor was that the arrears of maintenance purported to have been assigned had in fact been paid, and, therefore, there was no effective assignment. The trial Judge held the satisfaction proved and dismissed the darkhast. The learned District Judge, in appeal, held on a legal point that the satisfaction was not proved and directed execution to proceed. In this Court the first point taken is that inasmuch as the alleged payment has not been certified under Order XXI, Rule 2, it is not open to the judgment-debtor to prove such payment, even if in fact it took place.

(3.) MR. Datar contends that there must always be two applications, one under Rule 16 to get the assignment recognised and a further application under Rule 11 giving the particulars of the methods in which execution is prayed, and that the first application is really not one for execution. No doubt, it is open to the assignee to make two applications as was held by MR. Justice B.J. Wadia in Baijnath v. Binraj: In re Jankiprasad (1936) 39 Bom. L.R. 540. and in a case where there are any complications, or where the decree has been transferred for execution at the instance of the decree-holder to another Court, that may be a desirable course. But I entertain no doubt that it is not necessary to have two applications. A single application may ask that the decree be executed at the instance of the assignee in the manner specified, complying with the requirements of Rule 11, and that course was in fact adopted in the present case.