MOHINI MOHAN MOZUMDAR CHOUDHURY Vs. SURENDRA CHANDRA DEY

JUDGEMENT

(1.) One Ram Kanai obtained a decree for money against the judgment-debtor. The respondent Surendra purchased this decree and applied to have his name substituted as a decree-holder and to execute the decree. The appellant Mohini, having a decree against Ram Kanai, having attached the said decree of Ram Kanai and as an attaching creditor, opposed the application of the respondent on the allegation that the kobala was fraudulent and benami. The first Court allowed the objection. On appeal the District Judge has held the kobala to be good and valid and allowed the objection of the respondent. The attaching creditor appeals on the ground that no appeal lay to the District Judge. This would depend upon whether the case comes within the purview of Section 47, Clause 3, of the Code of Civil Procedure. The question is whether the applicant Surendra was a representative of the decree-holder and was as such entitled to execute the decree. This question would apparently come within Section 47, Clause 3, and if it does so come within that clause the appeal lay to the District Judge. It is contended, however, on the authority of the case of Ram Chunder v. Musammat Hamiran 11 C.W.N. 433; 6 C.L.J. 437, that in order that the case may be brought within the purview of Section 47 Clause 3, the dispute in question must be one in which the judgment-debtor was interested. In this case it appears that the judgment-debtor did not appear to oppose the application of either of the parties. The case referred to was decided upon the old Section 244, Civil Procedure Code. In that section there was no numbering of the several subsections and the clause as to representation was dependent upon the previous part of the section which refers to the dispute between the parties to the suit. In the present Code Section 47 has been divided into three subsections and the sub-sections are numbered separately. The object of that numbering seems to have been to make the several sub- sections independent of each other. In any case the three sub-sections can be read each by itself and if this is done then Clause 3 provides for the decision of a question like that which was the subject-matter of the present dispute.

(2.) It is further contended that the application was made apparently under Order XXI, Rule 16, and if that was so there was no provision for any appeal to lie against the order that has been passed. Under the proviso to that rule, notice is to be served upon the transferee and the judgment-debtor and if the transferee, that is, the original decree-holder and the judgment- debtor have notice, then the case becomes one in which all the parties are represented. If all the parties are represented, the case may, very well, be treated as one in which the question arising for decision under Section 47 may be decided and taking it for granted that Rule 16 was entirely applicable, still there was nothing to prevent Section 47 from being applied for the decision of the question as to who is the representative of the particular party to the proceeding Rule 16 of Order XXI provides that a decree shall not be executed until the Court has heard their objections (if any) to its execution, that is, the objection of the transferor and the judgment-debtor. Here a third person also comes in whose objection may not be within the purview of Order XXI, Rule 16. Here the third person is Mohini who is the attaching creditor of Ram Kanai. That question, however, can very well be determined under Sub- section 3 of section. We think, therefore, that on the whole, the decision is one which comes within Sub-section 3 of Section 47 and is, therefore, appealable. As expressly stated in the section this decision is for the purpose of execution only.

(3.) In this view of the case we dismiss the appeal with costs, hearing fee two gold mohurs.