ODHAVJI LAKHAMSHI Vs. SAKARCHAND DAHYABHAI

JUDGEMENT

(1.) THIS appeal raises a very short question and has been referred to this full bench by my brother Gajendragadkar J, and Mr. Justice Macklin. The facts leading up to the appeal are that on June 28,1942, the respondent applied for execution of the decree as the assignee and on June 24, 1942, the executing Court made an order for attachment. On July 3,1942, the attachment was levied. The judgment-debtor came to know about the levying of the attachment and he filed a written statement raising various contentions against the assignment of the decree and challenging the title of the assignee to maintain the execution proceedings. His objections were heard and the learned Judge held against him and came to the conclusion that the assignment was good and that the title of the assignee to maintain execution proceedings had been established. On that he issued a notice under Order XXI, Rule 66, with regard to the attached property. It is from this order that this appeal is preferred.

(2.) THE first objection taken by Mr. Shah is that no notice was issued under Order XXI, Rule 16, and, therefore, the darkhast filed by the assignee should be dismissed. THE scheme of Order XXI, Rule 16, is this. It enables a transferee of a decree to apply for the execution of the decree in the same manner and subject to the same conditions as if the application were made by the decree-holder. THE first proviso to Order XXI, Rule 16, contains a certain prohibition and that prohibition is that when the decree is transferred by assignment, notice of the application for execution has to be given to the transferor and the judgment-debtor and the decree shall not be executed until the Court has heard their objections to its execution. THErefore, although under Order XXI, Rule 16, an assignee is entitled to apply for execution, he cannot get the decree executed unless he has established his title to be the assignee after giving notice to the judgment-debtor and after his objections, if any, have been heard by the Court. It is to be noticed that a notice to the judgment-debtor is mandatory. As the Privy Council has pointed out, it is the very foundation of the jurisdiction under Order XXI, Rule 16, but it is equally to be noted that the object of giving the notice is to enable the judgment-debtor to place before the Court his objections, if any, to the execution of the decree, and what is prohibited is the execution of the decree without hearing the objections of the judgment-debtor.

(3.) BUT Mr. Shah has contended that not only the order of attachment must go but even the findings given by the learned Judge as to the status of the assignee and as to the validity of the assignment should also be set aside. We cannot accept that contention. Mr. Shah says that these findings were arrived at in the absence of any notice given to him Under Order XXI, Rule 16.That is perfectly true. BUT as we have pointed out, the object of the notice is to enable the judgment-debtor to submit his objections. If in fact he has submitted his objections and those objections have been heard, then he cannot be heard to say that that adjudication is bad because he did not receive the notice. These findings are not in any sense a part of the execution of the decree. If they were, then certainly Mr. Shah would be right that the decree could not be executed till the title of the assignee has been established. It is obligatory upon the learned Judge to hear the objections and to decide the question as to the validity of the assignment. What he did was under an obligation to do under Order XXI, Rule 16.He only did it without issuing the necessary notice, but that is a mere irregularity which has been cured by the judgment-debtor appearing, putting in a written statement and filing his objections. We, therefore, hold that the findings of the learned Judge with regard to the validity of the assignment and the title of the assignee must stand. Therefore, the order of attachment will be set aside. BUT as regards the final order under Order XXI, Rule 66, which was issued after the learned Judge held that the title of the assignee had been established, must stand. Therefore, the appeal being from that final order, the appeal must be dismissed. No order as to costs. .