PRAFULLA CHANDRA GHOSH Vs. RAMESH CHANDRA GHOSH

JUDGEMENT

(1.) This appeal by one of the judgment-debtors, Prafulla Chandra Ghose, arises out of an execution proceeding started in connexion with Suit No. 66 of 1936 of the Court of the Second Munsiff, at Dacca, in which one Amulya Charan Ghose got a decree for costs amounting ultimately to Rs. 269-9-6 against one Nishi Kanta Ghose and Prafulla Chandra Ghose aforesaid (Nishi is now dead). Amulaya thereafter on 24-5-43, transferred the decree to one Ramesh Caandra Ghose, and when Ramesh applied for execution (Execution case No. 79 of 1943) objections were taken by the judgment-debtors, one of which gave rise to Miscellaneous case No. 180 of 1943; the main objection in this case was to the effect that the decree could not be executed inasmuch as it had already been attached on 11-5-1943 (Execution case No. 53 of 1913) by one Rebati Raman De, who had obtained a decree at Alipore against Amulya in Suit No. 11 of 1939. The learned Munsif upheld this objection and dismissed the execution case. Ramesh then appealed and the lower appellate Court reversed the decision of the trial Court and directed that the execution case No. 79 of 1943 should proceed. Against that decision the judgment-debtor Prafulla Chandra Ghose has preferred the present appeal.

(2.) It is urged before me by the learned Advocate for the appellant, that Ramesh could not execute the decree assigned to him on 24-5-1943 inasmuch as it had already been attached on 11-5-1943 by the second Munsiff at Dacca in execution of Rebati's decree, which was transferred for execution to that Court. The real question, therefore, is whether the attachment by the Dacca Court on 11-5-1943, was a valid and effective attachment. It is argued for the appellant that from Section 42, Civil P.C., it was clear that the Court to which a decree is transferred for execution is empowered to take all steps in execution which could be taken by it if the decree had been passed by itself, and that therefore it was open to the transferee Court at Dacca to make the attachment under Order 21, Rule 53 (1)(a) in the same way as it could have done if the decree was its own decree. I do not think, however, that this contention is correct. Order 21, Rule 53 (1)(b), makes express provision for cases where decrees are passed by different Courts and requires that in respect of a money decree attachment is to be made by issuing notice to the Court which passed that decree, requesting such Court to stay execution of its decree until the notice was cancelled "or the holder of the decree sought to be executed or his judgment-debtor applied to the Court receiving such notice to execute the attached decree Admittedly, no notice was issued and the procedure prescribed by Order 21, Rule 53, 1(b) was not followed. Section 42, Civil P.C. does not lay down that the decree transferred for execution becomes the decree of the Court to which it is transferred so that it may be treated as the decree "passed by the same Court" within the meaning of Order 21, Rule 53 (1)(a). Reference in this connexion may be made to the case in Anil Kumar V/s. Jugal Kishore ( 39) 43 C.W.N. 374 In my opinion, the Court of appeal below has taken the correct view in holding that notice not being issued under Order 21, Rule 53 (1)(b) the attachment in question dated 11-5-1943, was not a valid and effective attachment and, therefore, could not preclude Ramesh from executing his decree.

(3.) Next it is urged that at the most the defect in attachment was a mere irregularity and error of procedure which was cured by waiver on the part of Amulya; but it is to be noticed that though the order of attachment was passed on 11-5-1943 the notice thereof was issued on 14-6-1943 and in the meantime on 24-5-1943 the assignment of the decree was made to Ramesh. I do not think in the above circumstances there can be any question of waiver. Besides when issue of notice is a requisite condition of attachment, mere omission to take objection on the ground that notice was not issued, cannot, in my opinion, validate the attachment, the more so as against a third party, who claims an interest in the attached property. It would be worth noting that Rebati Raman De, the decree-holder in Title suit No. 11 of 1939 is no party to the present proceedings. Both the contentions in my opinion fail and I accordingly dismiss this appeal and affirm the decision of the Court below. There will be no order as to costs. Leave to appeal under Clause 15 of the Letters Patent is refused.