BHAVANI SHANKAR JOSHI Vs. GORDHANDAS JAMNADAS

JUDGEMENT

(1.) THIS appeal arises out of an application made under Rule 16 of Order XXI of the Civil Procedure Code, 1908. 16. Where a decree... is transferred by assignment in writing or by operation of law, the transferee may apply for execution of the decree to the Court which passed it, and the decree may be executed in the same manner and subject to the same conditions as if the application were made by such decree-holder. Provided that where the decree... has been transferred by assignment, notice of such application shall be given to the transferor and the judgment-debtor, and the decree shall not be executed until the Court has heard their objections (if any) to its execution.

(2.) ON February 19, 1924, F. Friedmann's Diamanthandel Maatschappij (F. Friedraann's Diamond Trading Company, Ltd.), herein called "the Dutch company," obtained from the High Court at Madras in its original jurisdiction a decree for Rs. 24,207-4-0 with certain interest and costs against one Ramnath Joshi, the appellants' father. He died on September 15, 1924, and on February 8, 1927, leave was given by the High Court to execute the decree against the appellants as his legal representatives. The second appellant was at that time a minor, but this fact was at first overlooked. ON January 26, 1935, application was made to the High Court under the rule above cited by one Gordhandas Jamnadas, who claimed to have taken an assignment dated November 8, 1933, of the decree and asked for sale of certain immovables of the judgment-debtors situate within the High Court's original jurisdiction and for an attachment of a decree which they had obtained in a Court at West Tanjore. An order having been irregularly made on October 22, 1935, without any guardian ad litem for the minor, one Venkatesa Tarwadi was appointed guardian in April, 1936, and by affidavit dated April 24, 1936, he set up certain objections to the application. He said first that the assignment of November 8, 1933, had been executed by one Shantilal Lallubhai Pandya whose power-of-attorney did not authorise him to assign the decree : secondly, that the decree had been adjusted by an arrangement for payment to the Dutch company of a sum of Rs. 4,277-4-0 by way of composition at the rate of three annas in the rupee; that the alleged transferee Gordhandas Jamnadas had agreed to make this payment on the judgment-debtors' behalf and had in fact paid it to the Dutch company though no steps had been taken to get the payment recorded : thirdly, that thereafter Shantilal and Gordhandas Jamnadas had in fraud of the judgment-debtors executed the assignment of November 8, 1933.

(3.) UPON the question of fact the appellants are in extreme difficulty. Notice must go to the alleged assignors by the terms of Rule 16 and the Dutch company have been duly served. They appeared by their advocate before the division bench and confirmed the ratification. They are parties to the appeal now before the Board and do not appear at the hearing to complain that they still retain their rights as decree-holders. The High Court was under no duty to enquire who instructed the advocate who appeared for the Dutch company. In these circumstances the assignment of November 8, 1933, must be upheld so far as regards the question of Shantilal's authority.