DWARKA DAS Vs. MUHAMMAD ASHFAQULLAH

JUDGEMENT

(1.) The Kayastha Bank had a decree against Ashfaq-ullah. Babu Dwarka Das applied for execution on 2nd November, 1918 for the first time on the ground that, the decree had been transferred to him by the Manager of the Bank acting on behalf of the Bank on 6 September,1918. On 3 February, 1919, Dwarka Das's name was substituted. On 4 February, 1919, he applied for execution and this application was struck off. Another application was made on 12 April, 1920, with the same result. On 16 June, 1920, he applied again and during the pendency of this application Ashfaq-ullah paid Rs. 400 on 18 January, 1921, and at the same time prayed that, the money might not be paid to the decree-holder as he desired to object to the transfer in favour of this decree-holder, Dwarka Das. The execution application, however, was dismissed after part satisfaction without any direction that the money may not be paid to the decree-holder. On 26 October, 1922, another application for execution was filed by Dwarka Das whereupon Ashfaq-ullah objected that the Manager had no right to transfer the decree on behalf of the Bank and that the transfer being made in consideration of a personal debt due by the Manager to Dwarka Das was not valid. The Trial Court of the Subordinate Judge dismissed this objection on 17 March, 1923, on the ground that it was too late for Ashfaq-ullah. to raise such an objection after so many previous applications for execution. Practically it held that the question as to the validity of the transfer was res judicata. In appeal the learned Judge disagreed with this finding and further held that the Manager was not entitled to make the transfer on behalf of the Bank and that the transfer had not been subsequently ratified by the Bank.

(2.) In our opinion the question of law was correctly decided by the Trial Court. We are supported in this opinion by Division Bench rulings of this Court in Mumtaz Ahmad V/s. Sri Ram (1913) 35 All. 2547 and Taj Singh V/s. Jagan Lal (1916) 38 All. 289. The provisions of Section 11 of the Civil P. C. are not expressly made applicable to execution proceedings, but the principles are applicable and if a point has been directly or by implication decided in any particular execution proceeding the point cannot be raised subsequently. The lower Appellate Court hag quoted in favour of its opinion a judgmant of a single Judge of this Court in Kalian Singh V/s. Jagan Prasad (1915) 13 A.L.J. 162 which was confirmed by a Division Bench is Letters Patent Appeal as reported at page 823 of the same volume. There, however, the question was one of the amount due on the decree and that question had not been specifically decided at any time by the execution Court. In the present case as we have seen Dwarka Das applied on 2nd November, 1918 under Order 21, Rule 16 for the substitution of his name. Such a substitution could not ha made without intimation to the judgment-debtor and the decree is not executed until the Court has heard the objection, if any by the judgment-debtor. The presumption will be that the Court proceeded according to law and that notice wa3 issued to Ashfaq-ullah. A definite order of substitution of name was passed by the executing Court. If the order was passed ex parts it was open to Ashfaq-ullah to have it set aside, Further, on 18 January, 1921 Ashfaq- ullan applied to the Court that the money deposited by him may not be paid to the decree-holder on the ground that the decree-holder was not a rightful transferee. This application was not granted. This also amounted to a finding that Dwarka Das was a transferee who can execute the decree. Under the circumstances we are of opinion that the principle of res judicata will apply hare.

(3.) The appeal succeeds on this point; otherwise we would have remanded it to the lower Appellate Court. The learned Judge of that Court has proceeded on evidence which is not on the record when ha decided the issue of fact. Ha has referred to certain memorandum and Articles of Association and a power of attorney which documents or copie3 thereof are not on the file. As to consideration also ha is in error that the transferee Dwarka Das was bound to prove the validity of the consideration paid by him. As however we have held that Dwarka Das can execute the decree and as the point is now res judicata we shall not discuss the question of authority of the Manager of the Bank to make the transfer. Mukerji, J.