SM SHAHEDAN BIBI Vs. MIR ALI

JUDGEMENT

(1.) This is an appeal by the judgment-debtor against an order passed on appeal by the learned Subordinate Judge, Second Court, Hooghli, by which the order passed by the learned Munsiff, Second Court, Serampore, has been affirmed. The said orders have overruled the judgment-debtor's objection and have allowed the execution to proceed against her.

(2.) On 20 December 1926, one Harihar Banerjee obtained a decree for money against the appellant in the Second Court of the Munsiff at Serampore. That decree was affirmed on appeal on 6 January 1928 and thereafter some lands belonging to the appellant were attached by Harihar. At the time when the lands were under attachment, one Abdul Gaffur purchased the attached lands in benami of his wife from the appellant. Harihar Banerjee had obtained a decree for money against Abdul Gaffur also. When Abdul Gaffur found that the lands purchased by him from the appellant were under attachment he proposed a compromise with Harihar Banerjee. The nature of the arrangement accepted by Harihar was as follows. Harihar gave up a portion of the decretal amount, received Rs. 50 in cash and for the balance of his dues under both the decrees, that is, the one he had obtained against the appellant and the other he had obtained against Abdul Gaffur. Abdul Gaffur executed a mortgage in favour of Harihar on 14 March 1931, by which he agreed to pay in instalments. The appellant admits in her evidence that the aforesaid sum of Rs. 50 was paid by her through Abdul Gaffur, who used to reside with her. On 4 December 1933, Harihar assigned to the respondents by a registered deed his decree against the appellant, and on 19 April 1934, the respondents made an application for execution against the appellant in the second Court of the Munsiff at Serampore, the Court which had passed the decree. In Col. 1 of that application which was in the ordinary tabular form a statement was made that the respondents were making the application for execution on the strength of their purchase of the decree from Harihar. The application was registered on the same date and a notice as required by Order 21, Rule 16 of the Code was issued by the Court on the appellant and on Harihar. The appellant filed two objections, one an objection under Order 21, Rule 16 and the other under Section 47 of the Code, but the substance of both the objections is the same. She took up the position that the decree had been adjusted out of Court, and so the respondents could not go on with the execution as assignees of the decree. The adjustment of the decree, the terms of which I have recited above, was not certified under Order 21, Rule 2.

(3.) Both the Courts below have held that the adjustment not being so certified cannot be taken into account, and have accordingly allowed the execution to proceed. The question in this appeal is whether that view is correct. The matter has been placed by the learned advocate for the appellant from two points of view. He first of all contends that Order 21, Rule 2, prevents only the execution. Court from recognizing an uncertified payment or adjustment, the adjustment therefore can be pleaded and proved in an objection taken by the judgment- debtor in pursuance of a notice issued on her under Order 21, Rule 16, for the purpose of showing that the decree being satisfied before the transfer of the decree, the transferee got nothing by the assignment, there being then nothing to assign. His second contention is that there being no relation of judgment-creditor and judgment-debtor between Harihar and Abdul Gaffur at the time when Abdul Gaffur executed the aforesaid mortgage bond in favour of Harihar, Order 21, Rule 2 does not apply. On both these points there is divergence of opinion in the other High Courts, but so far as I am aware there is no direct decision of this Court. There are no doubt two decisions of this Court, which approach very nearly the points I have to decide, namely Mon. Mohan Karmakar V/s. Dwarka Nath Karmakar (1910) 7 I C 55 and Brajabashi Modak V/s. Manik Chandra Modak but in my judgment these cases are distinguishable. In support of his first contention Mr. Bose placed before me the following cases: Raghu Nath Gobind V/s. Gangaram Yesu AIR 1923 Bom 404, Ganpeya V/s. Krishnappa AIR 1924 Bom 394, Ponnusami Nadar V/s. Letchmanan Chettiar (1912) 35 Mad 659, Ramayya v. Krishna Murthi AIR 1917 Mad 590 and Brajabashi Modak V/s. Manik Chandra Modak . In the last mentioned case, however, the question was raised but not decided. There the respondent who claimed to be the transferee of a decree for money obtained by one Khali Mohammad against the appellant made an application for execution in the year 1923. When that was done no objection was taken by the appellant when he was served with notice under Order 21, Rule 16. In course of the execution some of the appellant's properties were sold but the sale proceeds were not sufficient to wipe off the decree. The respondent applied for execution, the second time in the year 1924, and it is at this execution, the judgment-debtor took the plea that the decree had been satisfied by an adjustment before the assignment to the respondent. Mukherjee, J. held that the notice under Order 21, Rule 16 has to be issued only once, that is when the assignee of the decree for the first time wants to execute the decree and the objection in pursuance of a notice under that rule can be filed then; that the law does not contemplate that every time an assignee of the decree applies for execution that a notice under Order 21, Rule 16 is to be issued; and that the appellant, not having challenged the validity of the assignment when the respondent had first applied for execution in the year 1923, was precluded from raising any such objection. In Raghu Nath Gobind V/s. Gangaram Yesu AIR 1923 Bom 404, Macleod, C.J. and Crump, J. held that an uncertified payment or adjustment which had discharged the decree in full before its assignment could be pleaded by the judgment-debtor and considered by the Court in a proceeding started on the notice issued under Order 21, Rule 16 but I consider the said decision to be erroneous for the reasons which I will indicate hereafter. The question again arose in the Bombay High Court about a year after the decision of Raghunath Gobind's Case Raghu Nath Gobind V/s. Gangaram Yesu AIR 1923 Bom 404 That case came before Macleod, C.J. and Shah, J.: Ganpeya V/s. Krishnappa AIR 1924 Bom 394. Shah, J. doubted the correctness of the decision in Raghunath Gobind's case Raghu Nath Gobind V/s. Gangaram Yesu AIR 1923 Bom 404 and followed it very reluctantly on the ground that it was a binding precedent.