BALDEO PRASAD Vs. BHOLA NATH

JUDGEMENT

(1.) Respondents 10 to 12 in the miscellaneous first appeal before me obtained a money decree against respondents 1 to 9, The appellant claims to be an assignee of that decree from the original decree-holders by means of a registered instrument dated the 24th April, 1958. He filed Execution Case No. 20 of 1958 in the Court below on the 28th April, 1958, stating in the execution application itself that he is the assignee of the decree by means of a Kebala dated the 24th April, 1958. Even then, seeing the Sarishtadar's report, the Court directed notice to issue under order 21, rule 22, Code of Civil Procedure, to the judgment-debtors and did not ask the applicant to take steps for issue of notice of his application for execution to the transferors as required by the first proviso to rule 16 of Order 21 of the Code of Civil Procedure, as amended by the Patna High Court. I may mention here that under the general rule such notice has got to go to the transferor as well as to the judgment-debtor but under the Patna amendment the notice under the said proviso to Rule 16 has only to be given to the transferor. That also can be dispensed with if an affidavit by the transferor can be filed. The appellant after two attempts ultimately succeeded on the 12th May, 1958, in pursuading the Executing Court to issue notice under order 21 rule 22, Code of Civil Procedure, to the judgment-debtors as also attachment under Order 21, rule 54, Code of Civil Procedure, simultaneously. They are said to have been served accordingly on or before the 20th May, 1958, as it appears from the order of that date. On this date, that is, 20th May, 1958, one of the judgment-debtors appeared and prayed for time to file his objection about the maintainability of the execution case. This application was filed on the 6th June, 1958. After two adjournments, this matter came up for hearing on the 7th July, 1958. The appellant filed a petition, for time on the ground that he had to obtain certified copies of certain documents. It appears front the order of that date that this petition for time was not rejected and only the judgment-debtor's lawyer was heard in regard to the maintainability of the execution case. Be that as it may, the following day, that is on the 8th July, 1958, an application was filed by the appellant stating that he had been given an impression that the hearing of that matter was to stand adjourned on payment of Rs. 10/- as cost. He, therefore, prayed for re-hearing of that matter. The Executing Court has refused to re-hear. I may only observe that without rejecting the time-petition the Court ought not to have heard the matter ex parte and decided without hearing the applicant in the execution case. Be that as it may, I gave an opportunity to Mr. L.M. Sharma, learned advocate for the appellant, to argue this matter on merits before me and be has done accordingly. It is, therefore, not necessary for me to decide the civil revision application and to send the case back to the Executing Court for re-hearing the matter as I have myself heard the learned advocates for the parties on merits and I am going to dispose of the miscellaneous first appeal on a consideration of the points urged before me. The Civil revision application, therefore, is dismissed as infructuous.

(2.) In my opinion, Order 21, rule 16, in terms docs not say that the execution case itself has got to be dismissed if the transferee from the decreeholder has not at the initial stage of the case taken steps for issue of a notice of his execution application to the transferor. Of course, several Courts have taken the view that such a notice is imperative and the proceedings in the execution Case without issue of such notice are void, but that does not mean that the execution case itself has got to be dismissed. It is obvious that the notice contemplated under the proviso to rule 16 is a notice of the execution application which is filed in the Executing Court. If the assignee of the decree-holder, who has applied for execution, does not take steps for issue of such notice after he has been given time by the Court, the execution case may fail; but only on the objection of the judgment-debtor as soon as he appears the execution case cannot be dismissed, because notice of the execution application has not gone to the transferor. The cases relied upon by the learned Subordinate Judge in support of his view that the execution proceedings are void and, therefore, the execution case has got to be dismissed are distinguishable. The case of Rameshwar Singh Bahadur v. Harihar Jha, 1921 Pat HCC 1: (AIR 1921 Pat 76(2)) is distinguishable on its facts. In that case the execution petition has been filed on the 23rd August, 1917, by a person who was transferee from some cosharer-decree-holders and notice was ordered to issue under Order 21 rule 16. That notice was served upon the judgment-debtors but no notice was served upon the transferors (perhaps in the year 1917 the Patna amendment to which I have alluded above was not there). It has also been stated in that case that the failure to serve notice upon the transferors was due to neglect or default on the part of the transferee-decreeholder. The execution case was adjourned from time to time at the request of one of the parties and, finally, it came up for hearing on the 23rd April, 1918. At that point of time, the judgment-debtors objected to the execution case proceeding further because no notice had been served under Order 21, rule, 16, upon the transferors., and then the appellant applied for an adjournment in order to enable him to serve notice as required under that rule. The learned Munsif held that it was too late then. In the instant case no opportunity has ever been given to the appellant nor he has been asked at any point of time to take steps for issue of the required notice under rule 16 to the transferors. In that view of the matter, I hold that the decision of the Patna case is clearly distinguishable. In the case of In re, Janki Prasad Poddar, AIR 1937 Bom 365 the observation is there that the notice under Order 21, R, 16, is an imperative one and is an indispensible condition of jurisdiction under the Rule, and failure to give it renders the proceedings in execution void as against the transferor and the judgment-debtor. But if the facts of that case are examined it would be found that there the main point which fell to be decided was as to whether such a notice was necessary at the stage when an application is made to the Court which passed the decree for its transfer to another Court or whether such a notice is necessary to be issued by the transferee Court. Fortunately for us, this controversy cannot arise in Courts in Bihar as under the Patna amendment the steps for issue of this notice can be taken in either Court. It will be further found in the Bombay Case that a notice had gone to the necessary parties under Order 21 rule 16, and the objections raised by the parties were heard and decided and, ultimately the decision was that the application filed by the transferee-decree-holder was in proper form as required by Order 21, Rule 16. I may also here refer to the Full Bench decision of the Bombay High Court in the case of Odhavji Lakhamshi v. Sakarchand Dahyabhai, AIR 1949 Bom 63. There it has been held that the order of a attachment and other orders in the execution case which has proceeded by ignoring the mandatory provisions of Order 21, rule 16 proviso are bad, but that does not mean that the execution case itself should be dismissed. In the case of Mt. Sarifa Khatun v. Asimannessa Bibi, AIR 1938 Cal 734, the matter arose out of an application for setting aside the sale which had taken place in an execution case without taking recourse to issue and service of notice under Order 21, rule 16 and in that situation it was held by B.K. Mukherjea, J., as he then was : 'It seems to me therefore that the service of this notice under Order 21, Rule 16, Civil P. C., is an essential pre-requisite to the assumption of jurisdiction by the Court in a proceeding to execute the decree, if the application for execution purports to have been made by one who is not the original decree-holder but describes himself as an assignee of the decree-holder. This point was raised and decided in Umamoyee Dasya v. Jatan Bewa ILR 54 Cal 624: (AIR 1927 Gal 781) and it was held expressly that the" absence of necessary notice, on the assignor under this Rule was not a mere irregularity but it vitiated the whole execution proceeding and the sale and the same view was taken in an earlier decision of this Court In Sreenath Das v. Achutananda Mahanti 11 Cal LJ 354".

(3.) On a consideration of these authorities, it is clear to me that effective orders passed in an execution case filed by a person claiming to be the transferee of a decree without taking recourse to issue and service of notice (except when an affidavit by a transferor is filed as required by the Patna amendment) will be void and without jurisdiction. But that does not mean that the execution case itself has got to be dismissed, and specially at an early stage, without giving an opportunity to the transferee-decreeholder for giving a notice to the transferor under Order 21 rule 16, Code of Civil Procedure.