Indrajit Choubey and Another vs Sitaram Agarwalla and Others

P.N. Mookerjee, J.—This appeal is by the judgment-debtors and it arises out of a proceeding for execution of a decree.

The question, which arises for decision in this appeal is whether the claimants, under a partition of the decree-holder''s interest can apply to continue the execution proceedings, started by the decree-holder.

The learned trial Judge allowed the said application upon the view that the said claimants would be entitled to the relief, prayed for by them, under Order 21, Rule 16 of the Code of Civil Procedure, read with Section 146. The judgment-debtors contend that, as, in the instant case, there was no notice given of the alleged assignment by partition, as required by the proviso to Order 21, Rule 16, the said provisions cannot aid the present Respondents.

This aspect of the matter may not be altogether free from difficulty and the point whether, on partition, there is really any assignment, may not be altogether free from controversy. We do not, however, think that it is necessary for us, for purposes of this case, to go Into that question, as, in our view, the present matter would be covered by Order 22, Rule 10 of the Code of Civil Procedure, as it is now well established that the said rule applies to execution proceedings, (vide Krishnaji Ramchandra Koshti Vs. Bhikchand Ramkaran Marwadi, ; Manmohan Dayal and Others Vs. Kailash Nath and Others, ; Mahimuddin Vs. Panu Sahani and Others, ; Ajodheya Lal Mahaseth and Another Vs. Mahanth Brij Kishore Das, and the Bench decision of this Court; Taraprasanna Ganguly and Others Vs. Naresh Chandra Chakrabarty and Others, . It is true that, in an earlier Bench decision of this Court, some doubt was expressed on the point (vide Hem Chandra Banerji Vs. Annapurna Debi, ; but the same cannot prevail against the above preponderance of judicial authority. On an examination of the relevant statute also, namely, the Code of Civil Procedure, we are ourselves of the opinion that the said statutory provision (Order 22, Rule 10) will apply to execution proceedings, as it is not excluded by the excepting or excluding rule (Order 22, Rule 12).

In the above view, we would hold that the respondents'' application to continue the execution proceedings, on substitution in place of the decree-holder, has been rightly allowed by the learned trial Judge and we affirm his decision.

The appeal, therefore, fails and it is dismissed. There will, however, be no order for costs.

Amiya Kumar Mookerji, J.

I agree.