HARSUKHRAI M DOSHI Vs. AHMAD KAREEM

JUDGEMENT

(1.) The judgment-debtors in an execution case giving rise to Miscellaneous Case 47 of 1966 have obtained a rule from this court against the order dated the 29th of November, 1966 passed by the learned Subordinate Judge, 1st Court, Dhanbad.

(2.) The facts relevant for the purpose of disposal of this application can be stated in short compass. One Moinul Haque was the decree-holder who levied execution of the decree in Execution Case 65 of 1964 after the decree was made final on the 6th of August, 1964. On the 24th of December, 1965 Moinul Haque died. On the 16th of February, 1966 Ahmad Kareem, opposite party No. 1, filed an application for substitution of his name in place of the deceased decree-holder Moinul Haque. Ahmad Kareem is the son of one Md. Waliul Haque. The application for substitution in the execution case was made on the basis of an alleged oral gift of the decree in his favour by the deceased decree-holder Moinul Haque. The executing court, without hearing the petitioners judgment-debtors, ordered his name to be substituted on the basis of the claim aforesaid made by him. Against that ex parte order Civil Revision 112 of 1967 was filed in this Court by the petitioners, which was disposed of by a judgment and order dated the 10th of January, 1968 by Tarkeshwar Nath, J., allowing the application and directing that the ex parte order of substitution passed by the executing court be vacated, with a further direction to the executing court to hear the petitioners before passing any final orders on the application of opposite party No. 1. On remand by this Court, the matter regarding the substitution of opposite paaty No. 1 on the basis of his claim of assignment of the decree in his favour by oral gift by the deceased decree-holder has been reconsidered and by the impugned order in the instant miscellaneous case the learned Subordinate Judge has allowed the claim of opposite party No. 1 to be brought on the record of the execution case as a decree-holder by virtue of the assignment of the decree claimed by him.

(3.) The point for consideration in this application being not very much free from difficulty was thought fit by a learned single Judge of this Court to be referred to a Division Bench. Hence this application before us. The point arising in the present application is as to whether under the provisions of Order 21, Rule 16 of the Code of Civil Procedure (hereinafter called the Code) such a claim of assignment by virtue of an oral gift in favour of opposite party No. 1 can be held to be entertainable. When Mr. Sudhir Chandra Ghose, learned Counsel for the petitioners, made his submissions, at the outset I had a little doubt as to whether the matter in dispute could be said to be covered by Order 21, Rule 16 of the Code or more likely by the provisions of Order 22, Rule 10. Such a doubt had been created on account of a Bench decision of the Bombay High Court in the case of Krishnaji Ramchandra v. Bhikchand Ramkaran, (AIR 1942 Bom 82) wherein it has been held, on a review of some decisions, that cases of substitution in course of execution proceedings can well be covered by the provisions of Order 22, Rule 10 of the Code since in express language the provisions of Order 22, Rules 3, 4 and 8 only have been precluded from being applied by virtue of the provisions of Order 22, Rule 12. Mr. Ghose, however, strenuously contended that even in cases of substitution in course of execution of decree the proper provisions of law to be applied would be those enjoined in Order 21, Rule 16. Having given the matter my due and serious consideration, I think, the submission of learned Counsel is well founded. Our attention was invited to three decisions of this Court, namely, those of Musammat Gulab Kuer v. Syed Mohamad Zaffar Hassan Khan, (6 Pat LJ 358) = (AIR 1921 Pat 180), F. A. McNaught v. Mt. Saraswati Thakurain, (AIR 1935 Pat 117) and Sukhdeo Bhagat v. Bishwanath Singh, (AIR 1965 Pat 85); all the three decisions are Bench decisions. So far as the case of Musammat Gulab Kuer is concerned, Das, J., delivering the judgment of the Court, merely expressed grave doubts with regard to the applicability of provisions of Order 22, Rule 10 of the Code to execution proceedings and it was said at page 360-