FIRM DEOCHAND PANNALAL Vs. SHUBHKARAN SHIVDEOJI

JUDGEMENT

(1.) THIS is a petition to revise an order of the second Additional District Judge, indore, rejecting the objection of the applicants that ant application for execution of a decree against them filed by the non-applicant Shubhkaran on 15th March, 1951, was not maintainable inasmuch as the decree had been attached by Messrs. Khemji Punja and Co. , Bombay, in execution of their own. decree against shubhkaran. The precise objection raised by the applicants in the lower Court, and negatived there was that the non-applicant had not obtained the leave of the court making the attachment.

(2.) BEFORE me Mr. Tayal learned counsel for the applicants, urged that under the order of attachment of the decree in question issued on 6th October, 1951 by the additional District Judge, Indore to the Court of the District Judge, Indore, the execution of the decree was stayed until the court of the Additional District Judge, indore which passed the decree in favour of Messrs. Khemji Punja and Co. , cancelled the notice requesting the stay of execution or until the holder of the decree sought to be executed, namely Messrs. Khemji Punja and Co. , applied to the Court to execute the decree; and that in that order it was not stated that the execution of the attached decree could be proceeded with when the holder of the attached decree applied to the Court for executing that decree. It was maintained that under the terms of the order dated 6th October. 1951, it was not open to the non-applicant to take proceedings for the execution of their own decree against the applicants. It was further stated that in any case the nonapplicant's application for the execution could not be entertained as it was filed without the leave of the Court making the attachment and that it did not state that the amount that would be realised in execution of the decree would be for the benefit of the attaching creditor. In my opinion, there is no force in any of these contentions. There is no dispute that the direction made by the Court of Additional district Judge, Indore, on 6th October, 1951, with regard to the attachment of the decree was under Order 21, Rule 53 (1) (b ). The effect of the attachment of the decree under this rule is to stay the execution of the attached decree until the con-ditions mentioned therein happen. The stay order is, however, not absolute, It does not prevent the holder of the decree sought to be executed or the holder of the attached decree from executing the attached decree. The object of the stay is to prevent the holder of the attached decree from realising or taking away the proceeds of the decree. As pointed out by the Privy Council in Mahalingam Chettiar v. Ramanathan Chettiar, AIR 1940 PC 173 (A), a request made under O, 21, Rule 53 (1) (b) is a mere request.

(3.) AS to the contention that the opponent should have stated in the body of the application for execution that it was being made for the benefit of his judgment creditor, I do not think it was necessary under any provision. In such a case it would be assumed that the amount realised by the holder of the attached decree in execution of the attached decree would be in the first instance for the benefit of his judgment-creditor. The omission on the part of the opponent decree-holder to obtain the leave of the Court making the attachment, is, in my opinion, not such a defect as would invalidate the execution proceedings.