Pedda Thimma Reddy vs Darur Subbarayudu and Others

Mockett, J.—The appellant is the second judgment-debtor in O.S. No. 8 of 1929 and respondent 1 is an assignee of the decree-holder

plaintiff .Two points have been argued before us. The important dates are as follows : The decree in the suit in which E.P. No. 26 of 1930 was

filed against the second judgment-debtor, was passed on 28th February 1930. On 18th September 1930 the appellant was adjudicated and E.P.

No. 26 of 1930 was dismissed on 19th September 1930. On 11th August 1933, the decree was assigned to one Subbarayudu. On 11th August

1934 the decree-holder died. On 19th April 1935 the appellant''s adjudication was annulled. On 24th February 1938 Subbarayudu was

adjudicated and he filed an appeal. His appeal was dismissed. But when he appealed to the High Court an order of stay dated 19th April 1938

was passed. We have not seen that order. The appeal was dismissed on 17th August 1939. There was, therefore, from 19th April 1938 to 17th

August 1939, a period of 16 months'' stay order operating. During that period, viz., on 28th June 1938, E.P. No. 28 of 1938 was filed by

Subbarayudu praying for the arrest of the appellant after recognising the assignment. It was dealt with, with the order ""not pressed, dismissed."" It

was in time because on 27th August 1935 a second petition for adjudication had been filed which was dismissed. But it is conceded by the

appellant here that in those proceedings there was an acknowledgment within the Limitation Act which makes 20th June 1938 within time so far as

the law of limitation is concerned. On 27th September 1940 E.P. No. 54 of 1940, the subject of the present appeal, was filed by Subbarayudu.

Objections were taken by the judgment-debtor as follows. It was contended that execution should not proceed without notice to the decree-

holder''s legal representatives, and as what is described by the lower Court as ""a belated objection,"" it was contended that notice of execution

petition had never been given to the transferor under Order 21, Rule 16, Civil P. C. The other objection taken was that on 27th September 1940,

Subbarayudu was an insolvent, and therefore, his application was not competent. That matter had been dealt with in an order passed by the

learned District Judge of Bellary on 24th February 1942 in E.A. No. 201 of 1941 in E.P. No. 54 of 1940. In that execution appeal the Official

Receiver of Karnool prayed that he might be substituted for Subbarayudu and permission given to continue the execution of the decree. An

examination of the learned Judge''s order shows that what was the subject of argument before him was whether Subbarayudu being an insolvent on

27th September 1940, this order of substitution should be made. But the argument throughout was based on the assumption that the execution

petition of 20th June 1938 was competent.

Before us now Mr. Sitarama Rao has argued that the execution petition of 20th June 1938 was not competent because at that time

Subbarayudu was an insolvent. A point of that sort was essentially one which should have been taken before the lower Court. It was most

important for example that the order of the High Court in the stay petition should have been exhibited and that the facts relating to the status of

Subbarayudu on that date should have been thoroughly investigated. Authorities have been cited to us for the proposition that a person who is an

adjudicated insolvent cannot himself enter on legal proceedings as he is represented by the Official Receiver or in this City by the Official Assignee.

But this execution petition was filed during a long period when it can hardly be supposed the Court would not have made provision at least for the

conduct of his affairs. It is enough for me to say that unless there is evidence before him that at that time there was a prohibition on Subbarayudu''s

conducting any litigation, I am not prepared to assume that there was any such prohibition in 1938. Had there been, objection would no doubt,

have been taken if it was valid. This execution petition was disposed of in September 1938 and it has never been suggested that at that time any

objection was taken by the Court. In the absence of clear grounds for holding that any action in filing the execution petition at that stage was on the

facts illegal, I am not prepared to make any assumptions in favour of the present appellant. This is one of those points that should not be taken in

appeal for the first time. The same observation applies to the second point. Before the learned Judge it will be seen that what was described as ""a

belated objection"" was taken that notice of the execution petition had not been sent to the transferor under Order 21, Rule 16, Civil P. C. An

examination of the counter affidavit shows that that objection was not in fact taken. So it presumably must have been taken in argument. That again

is an objection which depended very largely on the facts. We know that the decree-holder died in 1934 and it was stated by the present

respondents that in their execution petition the original decree-holder had no heirs. So far as the appellant is concerned, it is clear that he had

knowledge of the transfer, and so from that point of view at least he has been in no way prejudiced. I consider that an objection such as this which

depends on the facts should have been clearly taken and the facts established. There is naturally after all these years very ''little available evidence

on this point. There appears to be nothing in the rule which says that the notice must be in writing or in any particular form, and the High Court of

Patna has taken the view that it may be oral. An objection based on a question of fact, viz., that a certain formality has not been complied with

should in my view be clearly proved after a long period of years such as has passed in this case more especially when the chief person concerned

is dead and has no heirs. I think that the learned Judge was right in not allowing this point to be taken at so late a stage. So far as I am concerned, I

can only say that I have not got before me the necessary information to decide it. The fact is that the present appellant is relying upon every

possible technical objection that the law allows to save him from paying his debts, and as so frequently happens the more arguable points are only

thought of when they come to this Court, las pure points of law can naturally always be ''raised. But points of law that depend on precise facts

should not, in my opinion, be allowed. There is no reason for holding that the lower Court''s order was wrong on the facts before it.

In the result, therefore, I would dismiss this appeal with costs of respondent 1.

Shahabuddin, J.

I agree.