ODHAVJI LAKHAMSHI Vs. SAKARCHAND DAHYABHAI

JUDGEMENT

(1.) This appeal raises a very short question and has been referred to this full bench by my brother Gajendragadkar J, and Mr. Justice Macklin. The facts leading up to the appeal are that on June 28,1942, the respondent applied for execution of the decree as the assignee and on June 24, 1942, the executing Court made an order for attachment. On July 3,1942, the attachment was levied. The judgment-debtor came to know about the levying of the attachment and he filed a written statement raising various contentions against the assignment of the decree and challenging the title of the assignee to maintain the execution proceedings. His objections were heard and the learned Judge held against him and came to the conclusion that the assignment was good and that the title of the assignee to maintain execution proceedings had been established. On that he issued a notice under Order XXI, Rule 66, with regard to the attached property. It is from this order that this appeal is preferred.

(2.) The first objection taken by Mr. Shah is that no notice was issued under Order XXI, Rule 16, and, therefore, the darkhast filed by the assignee should be dismissed. The scheme of Order XXI, Rule 16, is this. It enables a transferee of a decree to apply for the execution of the decree in the same manner and subject to the same conditions as if the application were made by the decree-holder. The first proviso to Order XXI, Rule 16, contains a certain prohibition and that prohibition is that when the decree is transferred by assignment, notice of the application for execution has to be given to the transferor and the judgment-debtor and the decree shall not be executed until the Court has heard their objections to its execution. Therefore, although under Order XXI, Rule 16, an assignee is entitled to apply for execution, he cannot get the decree executed unless he has established his title to be the assignee after giving notice to the judgment-debtor and after his objections, if any, have been heard by the Court. It is to be noticed that a notice to the judgment-debtor is mandatory. As the Privy Council has pointed out, it is the very foundation of the jurisdiction under Order XXI, Rule 16, but it is equally to be noted that the object of giving the notice is to enable the judgment- debtor to place before the Court his objections, if any, to the execution of the decree, and what is prohibited is the execution of the decree without hearing the objections of the judgment-debtor.

(3.) In this case although admittedly no notice was given under Order XXI, Rule 16, the objections of the judgment-debtor were heard in full and adjudicated upon and the learned Judge came to the conclusion that the objections failed and the assignment was proved. Therefore, in our opinion there was no bar against the assignee filing his darkhast and applying for execution, but all processes in execution which were taken before the judgment- debtor's objections were heard and before the title of the assignee was established were bad in law. The decree could only be executed after the objections had been heard and the judgment-debtor's title had been established. To the extent that the learned Judge made the order of attachment, he was doing something which he was not entitled to do, because he was permitting the assignee to execute the decree before he had established his title. But we do not agree with Mr. Shah that not only the order of attachment is bad but the assignee was not entitled to maintain the darkhast and the darkhast should be dismissed.