Jamuna Das vs Baijnath Prasad and Another

Courtney-Terrell, C.J.—This is an appeal by the holder of a decree by assignment from a person to whom the original decree-holder had assigned the decree, from an order of the Subordinate Judge of Patna made on an application u/s 47, Civil P.C., by the judgment-debtors in an execution case which the decree-holder assignee sought to execute against the judgment-debtors. The original decree-holder was a lady who was the wife of the judgment-debtor and she sued her husband and recovered judgment for a sum of Rs. 4,265. She then assigned the decree to one Bhagwan Das who assigned it in turn to the appellant who is the person who is taking out execution proceedings against the judgment-debtor.

It is a fact that the Court did not issue notice purporting to be under Order 21, Rule 16, Civil P.C., to the assignors of the decree and the judgment-debtor, but on the other hand did issue notice to them under Order 21, Rule 22, Civil P.C. On receipt of that notice the judgment-debtors filed the present objection case.

The lower Court has held that the decree-holder assignee has no right to execute the decree for two reasons. The first is the fact that the notice under Order 21, Rule 16 had not been issued. The wording of that order is simple and its purpose is clear.

Where the transferee of a decree seeks to execute that decree he can execute it in the same way as if the application for execution were made by the decree-holder provided always that notice of the fact of his application shall be given to the transferor and the judgment-debtor. The object of issuing notice to the transferor is for the production of the transferor and the matter of consideration or otherwise for the transfer is a matter which concerns those persons only and is not a matter of concern to the judgment-debtor.

It is provided also that the judgment-debtor shall have notice of the application for indeed you cannot take proceedings in execution unless the judgment-debtor against whom you propose to execute the decree has notice of the application. In the present case it is clear from the judgment that the assignors and the judgment-debtor both had notice of the application notwithstanding it was not a notice which in form mentioned Order 21, Rule 16. On the hearing of the objection case the burden of proof was put by the learned Judge on the decree-holder assignee to prove his assignment.

The decree-holder in fact gave no evidence in support of his allegation of assignment and the judgment-debtor gave no evidence to attack the fact of assignment and in these circumstances the learned Judge seemed to consider that he could not proceed to execution unless the decree-holder first proved the assignment. In my view that is based upon an erroneous idea of the law. Rule 16, Order 21 is clear. The proviso to that rule says that the notice of the application is to be given to the transferor and the judgment-debtor,

and the decree shall not be executed until the Court has heard their objection (if any) to its execution.

It is contended by Mr. Rai Guru Saran Prasad on behalf of the judgment-debtor that this means that the burden of proving the assignment as a preliminary to execution of the decree is thrown upon the decree-holder notwithstanding the fact that the judgment-debtor offers nothing in the way of evidence to impugn the assignment. I disagree with that view and in the absence of evidence the decree-holder is entitled to proceed to execution. The rule only provides that the decree shall not be executed until the Court has heard the objections if any.

In this case the judgment-debtor had every opportunity of being heard and he offered no evidence. In these circumstances the position of the decree-holder was unassailable. The second point upon which the learned Subordinate Judge rejected the application for execution is of curious nature. u/s 47, Civil P.C., C1. (2) the Court is entitled to treat a proceeding in execution as a suit and order payment of any additional court-fees. If that course was to be followed in the hearing of this objection it is obvious that the objector was in the position of the plaintiff and the burden of paying any court-fee which might be payable falls upon him.

The learned Subordinate Judge however thought that notwithstanding that the decree-holder was in the position of defending himself from the attack of the objector that the decree-holder should pay the court-fee. This is certainly consistent with what I consider his erroneous view in thinking that the onus of proof was upon the decree-holder to prove his assignment, but it is equally erroneous. If any demand for court-fee is to be made it must be upon the person who seeks to disturb the status quo.

Both of the reasons given by the learned Subordinate Judge for his decision are in my opinion untenable. I would therefore set aside the order of the Subordinate Judge and direct that the execution do proceed and that the judgment-debtor do pay the costs throughout.

Macpherson, J.

I agree.