BILASRAI JUHARMAL Vs. DURGADUTT MOTIRAM SEKSARIA

JUDGEMENT

(1.) THIS is an appeal against an order passed by Coyajee J. making a notice taken out by the first respondent under Order 21, Rule 16 absolute. The plaintiff, who is respondent No. 3, filed a suit against the firm of Juharmal Sarupchand and against another defendant with whom we are not concerned, and a decree was passed -against the firm on 18-1-1955 for a sum of Rs. 31,435-11-0 and costs and interest, and the first respondent alleged that this decree was assigned to him by the third respondent on 19-7-1955, and basing his right to execute the decree on this assignment the first respondent took out a notice under Order 21, Rule 16. The notice was issued against the appellant who is a partner in the firm of Juharmal Sarupchand against whom execution was sought, and as already pointed out that notice was made absolute by Coyajee J.

(2.) IN showing cause two defences were taken by the appellant and the first was that an arrangement was arrived at while the suit was pending between the plaintiff and the appellant that in consideration of the appellant not defending the suit and not giving instructions to counsel who was appearing for the partnership the plaintiff will not execute the decree against the appellant, and it is the case of the appellant that pursuant to this arrangement he withdrew his counsel, no instructions were given for the defence of the suit, and the matter was left to the other partner of the firm who is the second respondent, and as it happened, the second respondent also ultimately did not defend the suit and the decree was passed against the firm ex parte. Therefore, it is urged by the appellant that when the decree was assigned to the first respondent on 19-7-1955 the assignment must be subject to all equities to which the judgment-creditor Sa-want was subject, and inasmuch as he had agreed not to execute the decree against the appellant, the first respondent standing in the shoes of the decree-holder equally cannot execute the decree against him. The second defence put forward by the appellant was that the first respondent, the assignee, was merely the benamidar of the second respondent and that it was at the instance of the second respondent who really paid the consideration that the third respondent assigned the decree to the first respondent, and what was contended was that if the real assignee was the second respondent and not the first respondent, this being a money decree passed against the appellant and the second respondent, the second respondent could not execute the decree against the appellant by reason of the second proviso to Order 21, Rule 16. The learned Judge has taken the view that these defences cannot be gone into at this stage and that the only question that the Court has to consider when an application for leave is made under Order 21, Rule 16 is whether the transferee of the decree establishes, his title as the transferee, and what is contended is that as soon as the assignment of 19-7-1955 was proved by the first respondent his title was established and it was incumbent upon the Court to make the notice under Order 21, Rule 16 absolute. With respect to the learned Judge, the language of Order 21, Rule 16 makes it clear that what the Court has to consider is not merely the validity of the assignment but the objection if any put forward by the judgment-debtor against the execution of the decree against him. Therefore any plea that the judgment-debtor can validly put forward as to why the decree should not be or could not be executed against him must be heard and decided by the Court when an application for leave is made under Order 21, Rule 16.

(3.) IT was suggested by Mr. Khambatta that the proper time to consider objections to the executions of the decree is when an application for execution is made under Order 21, Rule 11 (2 ). It is clear that the scheme of the Civil Procedure Code is that a judgment-debtor ordinarily is not entitled to notice when the decree-holder seeks to execute the decree against him. After the suit has been decided against him and the decree is passed against him, the law does not contemplate that he should be heard over again as to why the decree should not be executed against him. But to this general principle there are certain exceptions and two of the exceptions are embodied in Order 21, Rule 16 and Order 21, Rule 22. Under these two rules a decree cannot be executed without giving an opportunity to the judgment-debtor of showing cause. Order 21, Rule 11 does not require any notice to be given to the judgment-debtor. When an application is made in the form set out under Order 21, Rule 11 (2), the Court must make the order without calling upon the judgment-debtor to show cause, and therefore it is futile to suggest that an opportunity will be given to the appellant to put forward his objections to the execution of the decree at the stage when the transferee of the decree will apply for execution under Order 21, Rule 11. Either the judgment-debtor must be heard at this stage or he cannot be heard at all. It was rather naively suggested by Mr. Khambatta that if an application for execution is made under Order 21, Rule 11 and the order is made for execution and the execution is not proper, then the Judgment-debtor can apply for setting aside the execution. Surely, the Code does not contemplate that the right which the judgment-debtor has to object to the execution of the decree under certain circumstances should be relegated to a stage after the execution has already issued against him. It is before the issue of execution that the judgment-debtor must be given the right to put forward his objections.