BALMAKUND Vs. ASHFAQ HUSAIN

JUDGEMENT

(1.) IN this case one Jagannath obtained a decree against Ashfaq Husain from the court of the Subordinate Judge of Cawnpore. He made several applications for the transfer of that decree either to the court at Lucknow or that at Bareilly. The decree-holder, on the 18th of April, 1911, made an application for execution in the court of the Subordinate Judge of Cawnpore. The 8th of June was fixed for the hearing of objections raised by the judgment-debtor. Before that date the decree- holder assigned that decree to Balmakund on the 27th of April, 1911. Balmakund, on the 2nd of June, 1911, made an application under Order XXI, Rule 16, for the execution of that decree. The munsarim on that very date made the following report :--"This is an application under Order XXI, rules 11 and 16 of Act V of 1908, and an application in execution has been made on behalf of Jagannath Prasad, decree-holder, and the 8th of June, 1911, has been fixed for the disposal of the objections taken by the judgment-debtor. This application has been presented by the purchaser of the decree." The order on this report is that this be entered in the register of miscellaneous cases and notices fixing the 24th of June, 1911, be issued to the opposite party. The case be put up on the same date for disposal. On the 8th of June, 1911, the application setting out the objections raised by the judgment-debtor to the application of the original decree-holder, Jagannath, dated the 18th of April, 1911, was taken up. The decree-holder, Jagannath, was absent, for the simple reason that he had parted with his interest in the decree in favour of the assignee, Balmakund, who had no notice of that date. The Court, after hearing the objections raised by the judgment-debtor, allowed those objections and held the decree to be barred by limitation. On the 10th of November, 1911, when the Court took up the application of the assignee, dated the 2nd of June, 1911, for disposal, objections were taken by the judgment-debtor. One of those objections was that the application for execution of the decree by the decree-holder was rejected finally on the objection of the judgment-debtor on the 8th of June, 1911, and that, therefore, the decree could not now be executed. Regarding this objection the learned Subordinate Judge remarked as follows :--"I am of opinion that when the decree-holder had not appeared and his pleader did not proceed with the application, it simply should have been rejected. No trial and disposal of the objection was called for. Anyhow, the objections were decided against a person who had no longer any interest in the decree, having sold it before, and the decision was not binding upon the person who was the rightful owner and was not before the court. This disposes of the objection." An appeal was preferred to the learned District Judge, who allowed the appeal on the ground that the order of the Subordinate Judge, dated the 8th of June, 1911, was a subsisting order, and that all the steps taken subsequently thereto were ultra vires. The learned District Judge, in connection with that order, remarks :--"The proceedings of the lower court may be called careless or may be called inconsistent. But in my opinion they were perfectly legal, and the order of 8th June could not be ignored or set aside by the court itself in subsequent proceedings. * * * On the facts it is clear that all subsequent proceedings were ultra vires and must be set aside." Taking this view of the order of 8th June, 1911, the learned District Judge allowed the appeal. A second appeal is preferred from the decree of the learned District Judge, and it is contended that the order of 8th June, 1911, regard being had to the circumstances of the case, is to be treated as in substance set aside by the learned Subordinate Judge. The learned Counsel for the other side argues that that order has in no way been set aside, and that, therefore, it ought to stand. There can be no doubt that the learned Subordinate Judge, when he took up the case on the 8th of June, 1911, was in possession of the facts that the decree-holder had assigned the decree to Balmakund, that he had no subsisting interest in the decree, and that the assignee had no notice of the date fixed for the disposal of the objections taken by the judgment-debtor. The order which he passed was, therefore, quite illegal. That being so, we are of opinion that the learned Subordinate Judge, by his order, dated the 10th of November, 1911, rectified the mistake committed by his predecessor on the 8th of June, 1911, and his remark in respect of that order must be treated as virtually setting aside that order, which was an ex parte order, and we think that he had power to do so, inasmuch as it is open to every court to correct such mistakes. Such being the case, the view taken by the learned District Judge is not correct. The result is that we allow the appeal, set aside the order of the learned District Judge, and send back the case to him for the decision of the appeal on its merits. The appellant will be entitled to his costs of this appeal.