NARAIN SAHU Vs. GOPI NATH NAIK

JUDGEMENT

(1.) This is an appeal by a judgment-debtor which arises but of the execution proceedings under the following, circumstances: The appellant Narain Sahu had a decree No. 108 of 1924 against Musai from the Court of the Subordinate Judge, Basti. Musai had a decree No. 84 of 1931 against Narain Sahu appellant from the Court of the Additional Subordinate Judge, Basti. On 2 March, 1933 an application was-made by Narain Sahu for attachment of decree No. 84 of 1931. Attachment was made on 3 March 1933. It my be mentioned here that both the decrees are decrees for payment of money. Notice of attachment was served on Musai on 17 of March 1933. On 16 March 1933 Musai transferred his decree No. 84 of 1931 to Gopi Nath Naik respondent 1. Thereafter Gopi Nath Naik made an application under Order 21, Rule 16, Civil P.C., for substitution of his name in place of the name of Musai his assignor and for execution of the decree. An objection was filed by the appellant to the effect that Gopi Nath Naik had no right to execute the decree. His objection has been dismisses by both the lower Courts. He has come here in second appeal. The first point that arises for consideration is whether an appeal lies in this case. Narain Sahu had a dual capacity in this case namely, (1) that of an attaching creditor and (2) of a judgment-debtor. Gopi Nath Naik applied for substitution of his name and for execution of the decree as representative of Musai decree-holder. A notice was issued to the appellant judgment-debtor under Order 21, Rule 16, Civil P.C. The proviso to Rule 16 lays down: Provided that where the decree or such interest as aforesaid has been transferred by assignment, notice of such application shall be given to the transferor and the judgment-debtor and the decree shall not be executed until the Court has heard their objections (if any) to its execution.

(2.) The appellant had a right to take an objection and the decree could not be executed until the Court had heard and decided it. The objection taken by the appellant is two-fold : His first objection is that as the transfer of the decree was made by Musai after the attachment the transfer is void. His other objection is that under Order 21, Rule 53, Civil P.C., Gopi Nath Naik has no right to execute the decree against him (the appellant). The first objection refers to the question as to whether the assignee (Gopi Nath Naik) is entitled to execute the decree as a representative of the decree-holder. This objection can be taken by the judgment- debtor under Section 47, Civil P. C. The case, therefore, falls under Section 47, Civil P.C. Under similar circumstances in Mohini Mohan Muzamdar 471, a similar view was taken; there it was held that: The question as to the genuineness of the purchase of a decree arising between the purchaser who applied for execution on the substitution of his name as decree-holder and a judgment-creditor of the -decree- holder who having attached the decree opposes the application comes within the purview of Section 47, Clause (3), Civil P.C., and as such its decision is appealable as a decree even though the judgment-debtor does not take any part in the dispute.

(3.) The fact that an application was made under Order 21, Rule 16, Civil P.C., does not prevent Section 47 of the Code from being applied for the decision of a question falling within its scope. There can therefore be no doubt that an appeal lies. The next question for consideration is whether the respondent has a right to execute the decree and his assignment is valid. As already stated the appellant has a dual capacity of a decree-holder as well as a judgment-debtor. He himself got the decree in question attached in execution of his own decree against Musai, the assignor of the respondent. The assignment in question was made after the attachment. Under Order 21, Rule 53 an attachment of a decree for payment of money is complete as soon as a notice such as is referred to in Clause (b), Rule 53 is served on the Court which passed the decree sought to be attached. As appears from the judgment of the learned Subordinate Judge the attachment was made on 3 March 1933 and the assignment was made by Musai thereafter. Section 64, Civil P.C. lays down: Where an attachment has been made, any private transfer or delivery of the property attached or of any interest therein and any payment to the judgment-debtor of any debt, dividend or other monies contrary to such attachment shall be void as against all claims enforceable under the attachment.