Prithvi Chand vs Satya Kinkar Das

James, J.—In 1919 Sarat Chandra Roy obtained a decree in the Calcutta High Court for the sum of Rs. 9,930. The firm of which Sarat Chandra Roy was a member subsequently became insolvent, so that this decree vested in the Official Assignee of Calcutta. The decree was assigned by the Official Assignee to Babu Satya Kinker Das who applied under Rule 2, Ch. 17 of the Rules of the Calcutta High Court for execution of the decree as a transferee and for the transfer of the decree for execution to the District Judge of Purnea.

After service of notices under Order 21, Rule 16, Satya Kinkar Das obtained permission from the Calcutta High Court to execute the decree which was transmitted in due course to the District Judge of Purnea. The District Judge transferred the decree for execution to the Subordinate Judge, before whom the judgment-debtor took the objection that the decree had not vested in the Official Assignee of Calcutta, so that his assignment of the decree to Satya Kinker Das was invalid.

The Subordinate Judge held that these were matters regarding which objection ought to have been taken when notice under Order 21, Rule 16, was served by the Calcutta High Court, and that as objection was not then taken, it could not subsequently be taken in the Court to which the decree had been transferred for execution.

Mr. S.M. Mullick, on behalf of the judgment-debtor, argues in the first place that the Calcutta High Court had no power to make any order under Order 21, Rule 16, because an order under that rule can only be made after the transferee has applied for execution of the decree, and in this case the transferee did not apply for execution of the decree in the Calcutta High Court before its transfer for the purpose of execution to the Court in Purnea. But Rule 2, Ch. 17 of the Rules of the Calcutta High Court permits an application under Order 21, Rule 16, to be combined with an application for transmission of a decree for execution and it does not appear that there was anything irregular in this procedure.

Mr. S.M. Mullick argues in the second place that since the Court to which the decree is transferred has, u/s 42, Civil P.C., the same powers in executing such a decree as if it had been passed by itself, the Subordinate Judge in Purnea was entitled to entertain the question of whether the decree had been validly transferred. He suggests that no notices were actually served by the Calcutta High Court and that whether notices were served or not, that Court merely considered the validity of the assignment made by the Official Assignee and did not enter into the question of whether the decree had vested in the Official Assignee.

On the question of whether notices were served, the learned Subordinate Judge has remarked that it was proved before the Calcutta High Court that notices had been served. A witness named Atul Chandra Majumdar gave evidence to the effect that no notice had been served by the Calcutta High Court; but this witness was not believed by the learned Subordinate Judge and his finding may be accepted that notices were duly served. But whether notices were duly served or not, it would appear that the order of the Calcutta High Court permitting Satya Kinker Das to execute this decree is binding on the judgment-debtor unless he can get it set aside in the Calcutta High Court. It is well settled that an application under Order 21, Rule 16, can only be entertained by the Court which actually passed the decree Amar Chandra v. Guru Prosunno [1900] 27 Cal 488; and it is manifest that if an objection regarding the capacity of the transferor is to be made it should be made to the Court which has the power to entertain an application under Order 21, Rule 16.

It has, moreover, been long settled law that where a decree is transferred and the name of the transferee put upon the record by the Court which passed the decree, and the transferee obtains an order for execution in the Court of another district, it is beyond the jurisdiction of the latter Court to entertain any question as to the transferee''s right to the execution sought: Ram Chunder v. [1900] 27 Cal. 488. Mohendro Nath [1874] 21 W.R. 141. Framji Rustamji v. Ratansha Pestanji [1872] 9 Bom. H.C.R. 49 and Ram Charan Sahu Vs. Salik Ram Sahu, . Our attention has been drawn to the decision of a Division Bench of this Court in Ram Sewak Lal Vs. Satruhan Deo Sahai, In that case a Munsif had given effect to an assignment which was on the face of it invalid. The High Court on this fact being brought to its notice, declined to recognise the assignment and dismissed the transferee''s application for execution. The learned Judges, while holding that when a decree is transferred and the transferee has been substituted for the decree-holder, it is not open to the Court to which the decree has been transferred for execution to entertain any question as to the transferee''s right to execute the decree, yet held that the judgment-debtor was entitled to raise in the latter Court the question that the decree is not executable. In that case as I have said, the assignment was on the face of it invalid and it was on that ground that the execution petition was dismissed.

In the present case it has not been suggested that the assignment by the Official Assignee was in any way invalid, and if the judgment-debtor desired to object that the decree-holder''s interest had not vested in the Official Assignee, he should have taken that objection when notice was served by the Calcutta High Court in the proceeding under Order 21, Rule 16. If in that case the judgment-debtor had taken this objection and it had been decided against him, he would have had a right of appeal; and if he omitted to take this objection and allowed the case to be decided ex parte, he is bound by the decision of the Calcutta High Court and he cannot take objection in the Court to which the decree is transferred for execution.

I would therefore dismiss this appeal with costs.

Dhavle, J.

I agree.