S.K.R.S. Sabapathi Chettiar vs Lakshmanan Chettiar and Others

Kuppuswami Ayyar, J.—The appellant is the eighth defendant and the appeal arises out of proceedings in execution of the decree in O.S.

No. 1 of 1941, on the file of the Subordinate Judge''s Court, Devakotta. The execution petition was filed by the assignee decreeholder. Notice

was ordered to be issued to the original decreeholder and to the judgment-debtors. All of them were served except defendants 1 and 4. The

petitioner exonerated defendants 1, 2 and 4 from the decree and as the others were served, the petition was proceeded with. The assignment was

recognised and the properties of the eighth defendant which were sought to be proceeded against were directed to be sold. The petition was

adjourned for settlement of sale proclamation. It is against that order this appeal has been filed by the eighth defendant. His contention is that since

notice had not gone to all the judgment-debtors the assignment ought not to have been recognised as the service of notice on all the judgment-

debtors is a condition precedent before.such an order could be passed and that goes to the root of the jurisdiction. Secondly it was contended that

the assignment was really a discharge and that the. assignment was taken in the name of the respondent benami for the second defendant who was

one of the judgment-debtors. On both the points the learned Subordinate Judge found against the appellant.

With regard to the question as to whether the assignment could not be recognised without notice being taken to defendants 1 and 4 our attention

has been drawn to the proviso to Order 21, Rule 16, Civil Procedure Code, which runs thus,

Provided that, where the decree, or such interest as aforesaid, has been transferred by assignment, notice of such application shall be given to the

transferor and the judgment-debtor and the decree shall not be executed until _the Court has heard their objections (if any) to its execution.

It is urged that the Court had. no jurisdiction to pass any orders, with reference to the assignment until notice had gone to the transferor and to

the judgment-debtor or judgment-debtors and their objections were heard. In this rase notice had gone to the transferor and notice had also gone

to all the judgment-debtors except defendants 1 and 4 who were exonerated from, the decree by the petitioner. The executing Court had no

necessity to hear the objections of these persons against whom the decree was not going to be executed at any time. The question was considered

by the Allahabad High Court in Ram Deo Rain v. Frank Coonts I.L.R.(1030) All. 898. This is what was stated in that case,

The question, therefore, is whether the auction sale should be held to be valid as against the Mortgagor who did receive notice or whether it should

be held to be altogether invalid. We consider that the mere fact that notice was not issued to the subsequent mortgagee is not a sufficient reason for

holding that the auction sale was invalid as against the mortgagor. Accordingly we consider that by that auction sale the plaintiff acquired the rights

of the mortgagor.

They also pointed out that in the ruling''s cited before them notice was not issued to any judgment-debtor at all.

The Calcutta High Court in Charubala Dei Vs. Baikuntha Nath Jana and Others, stated that if some of the judgment-debtors waived their rights

to have notice then it would not invalidate the execution proceedings. This is what they stated,

It therefore appears that the parties directly interested in the service of notices, under Order 21, Rule 16, Civil Procedure Code, had expressly

waived any rights which they may have had in respect of such notices. It appears from the provisions of Order 21, Rule 16, Civil Procedure Code,

that the notices to which reference is made in that rule are merely for the benefit of the transferors and the judgment-debtors and it was apparently

the intention of the Legislature to ensure that execution proceedings should not be continued unless the transferors and the judgment-debtors had

had a siuitable opportunity of coming forward to contest the validity of the assignment if they wished to do so.

In this case there was no necessity for the issue of notice on those persons against whom the decree was not going to be executed and who

were not interested in the execution proceedings. Consequently the absence of notice on those persons, we think will not affect the proceedings in

execution. The learned Subordinate Judge was, therefore, justified in finding that since notice has gone to all persons against whom the decree was

to be executed and to the transferor, the Court had jurisdiction to recognise the transfer and as the transfer was recognised by the executing Court,

the decree was to be executed only against those to whom notice had gone.

With regard to the other question as to whether the assignment was benami for one of the judgment-debtors and therefore amounted to a

discharge, there is absolutely no evidence excent that of the petitioner as D.W. 1 and he had no personai knowledge of the discharge. He merely

stated that the second defendant told him that the decree was discharged. But a statement by the second defendant to the witness will not be

evidence of the truth of that statement. It is stated for the appellant that the assignment itself had not been proved but we find from the endorsement

on Ex. P-l signed by the Judge that it was admitted by D.W.l. who is the appellant. It is true that in the counter it was stated that the plaintiff has to

prove the assignment but then when the genuineness of the document was admitted by the appellant and it was marked as an exhibit it cannot be

said that the appellant had been in any way prejudiced by the non-examination of any witness to prove it.

The appeal accordingly fails, and is dismissed with costs.