LAXMINARAYAN RAMCHAND MAHAJAN Vs. BHERA SITARAM DESWALI

JUDGEMENT

(1.) THE question involved in this case is very simple but it is of some importance. The decree was passed on 20-2-1952 against one Bhera and in favour of one madanlal. Madanlal assigned the decree to the present appellant Laxminarayan on 25-3-1953. He filed an application on 15-4-1954. No notice was issued to the transferor-decree-holder but a notice was issued to the judgment-debtor. A warrant was also issued but some how or other it was not executed. The application was dismissed on 11-4-1955. Laxminarayan again filed an application for execution on 14-1-1957. This application has been challenged as barred by time. Both the Courts held in favour of the judgment-debtor. The decree-holder has now come up in second appeal.

(2.) THE main objection is that the previous application dated 15-4-1954 was not an application according to law as no notice was issued to the transferor. It would therefore not give any limitation for filing a fresh execution petition.

(3.) PROVISO to Order 21, Rule 16, C. P. C. clearly lays down that the decree cannot be executed unless notice is issued to the transferor, But this only would mean that the application under Order 21, Rule 16 would not be bad when it was made before the Court; but there is an injunction on the Court not to execute the same before a notice is issued to the transferor.