BRAJABASHI MODAK Vs. MANIK CHANDRA MODAK

JUDGEMENT

(1.) (After stating facts, the judgment proceeded.) The objection that was taken to the execution of the decree was as follows: When the lands and homestead of the judgment- debtors had been under attachment in execution case No. 158 of 1922, at the instance of the decree-holder Khali Mahmud, as stated above, there was a settlement in which three parties took part, viz. the judgment-debtor, the decree holder Khali Mahmud and the respondent. The position at that time was that there were several creditors who had to be paid off. Some of them, rather all with the exception of only five - one of those five being Khali Mahmud were paid off by sale of some of the properties belonging to the appellant, the sale being made by the appellants mother acting as guardian on their behalf and on the strength of a permission obtained from the Judge. Khali Mahmud, in execution of his decree, had now attached some lands as well as the homestead of the appellants. Finding the helpless plight of the appellants he took pity on them and agreed to receive Rs. 325 in full satisfaction of his decree. For this amount he was prepared to assign hid decree over to the respondent, who agreed to pay off also four other creditors of the appellants; and for all this the respondent agreed to have from the appellants only 8 pakhis of land. By adopting this course it was expected that the homestead of the appellants would be saved to them. The appellants case is that the respondent paid Rs. 325 to Khali Mahmud and obtained an assignment of the decree, but since then paid none of the other creditors. As an apprehension was entertained as to whether the District Judge would grant permission for the sale of the minors properties a second time, it was arranged that the respondent would execute the decree against the 8 pakhis of land. This was done and the respondent purchased the same himself. Thereafter, in breach of the agreement, the respondent again put the decree to execution, and this time for the balance, that is to say, for Rs. 344-5-9 ; which represents the difference between the decretal dues with interest less the sale-price, Rs. 500, for which he had purchased the 8 pakhis of land, and against the homestead of the appellants. This substantially is the appellants case and both the Courts below have found that it has been established upon the evidence. The only point on which there may be a doubt is as regards the stipulation to pay off the other four creditors.

(2.) The District Judge has held that the objection cannot be given effect to as the arrangement amounted to an adjustment which was not certified in accordance with Order 21, Rule 2 and consequently cannot be recognized by an executing Court.

(3.) Two grounds have been urged on behalf of the appellants in this appeal : the first is to the effect that the Court was not the Court which was executing the decree and therefore the objection was capable of being recognized by it; and the second, that the arrangment required no certification under Order 21, Rule 2, Civil P.C. To take the first contention first. The decree was passed by the same Court in which it was being executed. The appellants argument is that, as the application for execution was made not by the original decree-holder but by the assignee, his application must be regarded as one made under Order 21, Rule 16, Civil P.C., and as such as application lies only in the Court which passed the decree. It should be held that the Court was dealing with it in the latter capacity, and consequently, under the first proviso to that rule, the decree cannot be executed until the judgment-debtor's objection, if any, to its execution has been heard. It is an ingenious argument, but I am afraid it is without any substance. The rule evidently contemplates the occasion when, for the first time, the assignee comes before the Court to apply for execution. The respondent did this when he applied on the 12 June 1923 and execution case No. 97 of 1923 was started. The object of issuing notices under that rule to the transferrer and the judgment-debtor is to determine once for all, and in the presence of all parties concerned, the validity of the assignment. It cannot be said that each time the assignee comes to get the decree executed he should come in under this rule. The application filed on the 15 September 1924 is a simple tabular statement for the execution of the decree. It neither is, nor can be regarded as an, application under Order 21, Rule 16, Civil P.C. The case of Tameshar Prasad V/s. Thakur Prasad [1903] 25 All. 443 and Raghunath Gobind V/s. Gangaram Tesu A.I.R. 1923 Bom. 404, upon which reliance has been placed on behalf of the appellants, do not assist them. This contention, therefore, has no substance.