P ABDUL SAMAD SAHEB Vs. SOWCAR KAMARUDDIN SAHEB

JUDGEMENT

(1.) This appeal arises out of execution proceedings under a consent decree awarding the decree-holder the sum of Rs. 5,845-10-8 to be realized out of the assets of one Nur Muhamad Usman Saheb, deceased, in the hands of the defendants and out of the assets in their hands of the business in which he was a partner. Of the defendants, the first and second were surviving partners, while the third was the widow of the aforesaid Nur Muhamad Usman Saheb. The earliest execution application to which we have been referred was to transfer the decree to the Sub-Court of Shimoga, and this was ordered on 7 December 1927. Then while execution was pending there, on 24 February 1928, the decree-holder assigned the decree to the present appellant. In E.P. 146 of 1928 this transferee decree-holder applied under Order 21, Rule 16, Civil P.C., for leave to execute the decree and to continue the proceedings at Shimoga. This was ordered on 19th April 1928, the order reciting that the defendants did not appear in person or by pleader, though served with a copy of the notice of the application. Subsequently, on 1 September 1928, defendant 3 died and in E.P. No. 21 of 1929 the appellant applied to execute the decree against her legal representatives, consisting of a mother, four brothers and a sister. A month later, on 25 April 1929, one of these legal representatives, S. Kamaruddin Saheb, moved the Master, who had passed the order in E.P. 21 of 1929, to call on the appellant to show cause why the earlier order recognizing the transfer should not be set aside, the proceedings in E.P. 21 stayed and such other orders as might be appropriate passed. The principal ground alleged was that the appellant had secured re-cognition of his transfer without taking out or serving any notice on defendant 3. It was further asserted that only two out of the six legal representatives received notice of the later application, E.P. 21. The learned Master found it to be a fact that defendant 3 had no notice of the application under Order 21, Rule 16, and accordingly gave the legal representatives a further opportunity to show cause why the appellant should not execute the decree against the assets of defendant 3 in their hands. This order has been confirmed by the learned Chief Justice against whose decision this appeal is preferred.

(2.) It is admitted that defendant 3 was not served in E.P. 146, and this omission, it is not contested, renders the order void as against her and her legal representatives. It is an indispensable condition of jurisdiction under Order 21, Rule 16, that the first proviso to that rule, relating to notice, should be complied with: see Kassum Goolam Hosein V/s. Dyabhai Amarsi [1912] 36 Bom. 58 and Sreenath Das V/s. Achutananda Mahanti [1910] 6 I.C. 262. There can be no doubt therefore that, considered by itself, this order was rightly revoked. An attempt has however been made to found an argument upon the existence of the subsequent order to execute passed against the legal representatives in E.P. 21. It is said that these latter proceedings gave those representatives an opportunity to contest the right of the transferee decree-holder to execute, that they omitted to do so and that accordingly the matter is now res judicata. This position cannot however be sustained, we think, in the circumstances of this case. The contesting legal representative asserts that he only heard after the order in B.P. 21 had been passed, that defendant 3 had not been served in E.P. 146, and we must take it, in the absence of evidence to the contrary, that, when the latter order was passed, it was believed that defendant 3 had had an opportunity of contesting the order under Order 21, Rule 16. If that had been so, it would not have been open to the legal representatives to contest the transferee's right in B.P. 21, and accordingly that question was not one which, in the language of Expln. 4, Section 11, Civil P.C., "might and ought to have been made ground of defence or attack". It seems clear therefore that what happened in the later proceedings cannot operate as a bar of this kind, nor do we think that it makes any difference whether or not all the legal representatives were in fact served in the later application. The failure to serve defendant 3 not only renders void as against her and her representatives the proceedings in which the failure occurred, but all subsequent proceedings dependent upon them. As against the persons specified, the appellant has failed to establish his competence to execute the decree and this disability debars him in all further proceedings. This is made clear in Sri Nath Das V/s. Achutanand Mahanti [1910] 6 I.C. 262, a case in which service was effected indeed upon the judgment- debtors, but no notice was served upon the transferor. Even in such a case it was held, and we think rightly held, that the whole of the proceedings subsequent were bad in law. We do not wish to go into the merits, but it has only to be observed that the contention is that the appellant is a benamidar for defendants 1 and 2 to realize how defendant 3 may have been prejudiced by the order being passed behind her back.

(3.) The order under appeal modifies the order in E.P. No. 146 by noting that the legal representatives of the deceased defendant 3 had no notice of the application under Order 21, Rule 16, and by adding a further clause adjourning the application so that the legal representatives might have an opportunity of showing cause. We think that the better course would be to set aside the order in E.P. 146 of 1928 as against defendant 3. Her legal representatives may then be brought on and the application disposed of in due course. We must also for the reasons given set aside the order in B.P. 21 of 1929, and disposal of this application must await the decision in E.P. 146. It is hardly necessary to add so far as this latter application is concerned, that if the legal representatives are brought on in E.P. 146 no further question with regard to this relationship can arise in E.P. 21. It has been objected that the revocation of B.P. 21 was not in terms asked for, but we think that the notice of motion, which seeks such further or other order appropriate in the circumstances of the case, is wide enough to cover this relief, and Order 41, Rule 33, gives the appellate Court ample powers in this respect. The appeal is dismissed with taxed costs.