KUNDANMAL JASRAJ MARWADI Vs. SURAJKUVARBAI TARACHAND

JUDGEMENT

(1.) THIS appeal arises out of the dismissal of the plaintiff's suit on the ground that it was barred under Section 47 of the Civil Procedure Code.

(2.) RALLI Brothers of Bombay obtained a decree against the plaintiff, defendant No.2 and one Indrabhan Nemichand as partners of a firm named Kundanmal Narayandas in suit No.947 of 1932 in the High Court of Bombay. The decree was then assigned by the decree-holders to defendant No.1, the step-mother of defendant No.2. Defendant No.1 made an application to the High Court under Order XXI, Rule 16, Civil Procedure Code, 1908, to have her name brought on record and to have the decree transferred to the Ahmednagar Court for execution. A notice was duly issued and served on the plaintiff. The plaintiff contended that the assignment was bogus and did not give defendant No.1 a right to execute the decree. It appears that the plaintiff was called upon to furnish security, and as he failed to do so, the assignment was upheld and defendant No.1 was allowed to proceed with the execution of the decree, The plaintiff then filed this suit for a declaration that defendant No.1 had no right to execute the decree against him as the assignment taken by her was bogus. The defendants contended that the suit was barred as res judicata by reason of the decision in the execution proceedings upholding the assignment, and that the suit was also barred under Section 47, Civil Procedure Code. The contention regarding the bar of res judicata was disallowed, but the suit was dismissed on the ground that it was barred under Section 47, Civil Procedure Code, The plaintiff's appeal to the District Judge being summarily dismissed, he has now come in appeal to this Court.

(3.) THUS what was permissive under the old Code is mandatory under the present Code. The reason for the change evidently is that since there was a great delay and expense in a separate suit before the execution proceeded, it is now made compulsory for the executing Court to decide the question itself. In the other case relied upon, Ishar Das v. Salig Ram, the ruling in Bommanapati Veerappa v. Chintakunta Srinivasa Rau was followed, and it was held that a suit for a declaration that the assignment of the decree was invalid and fraudulent was maintainable and was not barred by Section 47, Civil Procedure Code. It was observed that there was a practical inconvenience for an executing Court to enter into an inquiry regarding the validity of the assignment. With profound respect, I think that the difference between the wording of the old Section 244 and Sub-section (3) of Section 47 in the new Code was not brought to the notice of the learned Judges who decided that case. The decision in Bommanapati Veerappa v. Chintakunta Srinivasa Rau being based on the old section is no longer good law, since Sub-section (3) of Section 47 makes it compulsory for the executing Court to decide the question of the assignment of the decree. That question, therefore, is one falling within the purview of Section 47, Civil Procedure Code, and, therefore, must be determined by the executing Court and not by a separate suit.