Nakur Mira Rowther vs Muhammad Ismail and Others

Venkatasubba Rao, J.—The finding of the lower appellate Court that no fraud has been made out is a finding of fact, and no grounds have

been shown why I should interfere with it in second appeal.

Mr. R. Somasundaram Aiyar for the appellant, however, raises another point. The Court allowed execution on the application of the 4th

November, 1919, and the learned Counsel''s argument is, that before ordering execution, the Judge should have directed notice to issue under

Order 21, Rule 22, Civil Procedure Code. It is contended that for want oft such notice, the order allowing execution is invalid and that the

proceedings that followed thereupon are void and of no effect. The soundness of this contention depends upon whether the previous application,

dated 12th September, 1919, was a petition for execution or not. The learned Counsel''s argument is that it was not such a petition. I cannot agree

with this. That was an application by the 1st defendant for his being recognised as assignee decree-holder and for transmission of the decree from

the small cause side to the original side of the Court. Under the plain terms of Order 21, Rule 16, this is clearly a petition for execution. A

transferee decree-holder must not only ask for his being brought on the record but must in the same petition apply for the execution of the decree.

In this case, the 1st defendant applied to the Small Cause Court, by which the decree was passed, for his being recognised as well as for the

decree being transmitted for execution. The petition must therefore be held to be an execution petition, and the Court, to which the petition was

presented, made an order recognising the assignment after notice to the judgment-debtor. The application of the 4th November, 1919, was made

within one year from the date of the order of the Small Cause Court recognising the transfer. The proviso to Order 21, Rule 22 says that no notice

shall be necessary ""if the application is made within one year from the date of the last order against the party against whom execution is applied for,

made on any previous application for execution."" I am quoting the words of the proviso.

On these facts there is no substance in the appellant''s contention that notice should have been ordered before the petition of the 4th November,

1919, was granted.

The Second Appeal fails and is dismissed with costs.