GOVINDRAO Vs. GANPATRAO RAGHOBAJI

JUDGEMENT

(1.) . Goswami Maheshpuri obtained a final decree for sale on 11-10-1933 in Civil Suit No. 81 of 1929 in the Court of the Additional Judge to the Court of the Subordinate Judge, First Class, Nagpur, against Laxman Ramchandra Indurkar and his four sons, the present appellants. The decree for sale covered two items of property, one an eight-anna share of mauza Kinhala and the other an eight-anna share of mauza Zamboli Tahsil Umrer. On 26-6-1934 the executing Court sent a c form to the Collector for sale of the property covered by the decree. The Sub-divisional Officer in his order-sheet dated 27-6-1935 (N.A. 1) gave details of the property to be sold. The area of the eight-anna share of Kinhala was shown in the order as 649 44 acres, land-revenue Rs. 641-3-6 which was just half the area and the land-revenue given in the decree. As regards the eight-anna share of mauza Zamboli the area and the land-revenue shown was the same as in the decree, and there is no dispute about this item of the property.

(2.) WHILE the proceedings were pending before the Collector for sale of the mortgaged property, the decree-holder assigned his rights under the decree in favour of Ganpatrao and others, respondents 1 to 4, under the transfer deed dated 20-2-1939 (Ex. A-1). On 9-3-1939 the assignees filed an application in the Court of the Third Subordinate Judge, First Class, Nagpur, for substitution of their names as decree-holders in place of the original decree-holder and for bringing the other sons of the deceased Laxman Ramchandra Indurkar on record as his legal representatives. In the body of the application there was no reference to Order 21, Rule 16, Civil P.C., but in the head-line to the application there was a reference to that rule. The executing Court issued notices to the original decree-holder and to the sons of Laxman Ramchandra Indurkar who were already on record and those it was proposed to add as the legal representatives of the deceased, to show cause against the application. The decree-holder admitted that he had assigned the decree in favour of the assignees and stated that he had no objection to their names being substituted in his place as decree-holders.

(3.) THE judgment-debtors never raised the plea that an application under Order 21, Rule 16 of the Code of 1908, was not maintainable as there was no application for execution as required by Order 21, Rule 11(2) of the Code. If they had urged that point it could easily have been rectified at the proper time by the assignees either by filing the necessary application for execution as there was no question of limitation involved in the case, or by an amendment of the application by omitting a reference to Order 21, Rule 16 of the Code. In their subsequent oral statement, the judgment-debtors urged that as the order of the Collector dated 27-6-1935 was not challenged by the decree-holder he was estopped from asserting that more than 649.44 acres of mauza Kinhala was mortgaged. The assignees urged that the Collector bad no jurisdiction to modify the decree of the Civil Court and the order of the Collector was ultra vires. The lower Court by the order dated 3-2-1940 substituted the names of the assignees in place of the original decree-holder and brought on record the sons of Laxman Ramchandra Indurkar as his legal representatives. There is no dispute regarding the substitution of the legal representatives of the original judgment-debtor Laxman Ramchandra Indurkar. The executing Court did not decide the question about the extent of the property covered by the mortgage or the mortgage decree on the ground that it was foreign to the inquiry and left the question open to the judgment-debtors to urge the pleas after the assignees had been substituted as decree-holders in place of Maheshpuri. The Court sent a memorandum on 9-2-1940 to the Collector intimating the substitutions made and asked that the C form pending before him for execution be amended accordingly. It is against the order dated 3-2-1940 that the present appeal has been filed on 2-4-1940.