Judgement

Appeal (No. ii of 1941) from an appellate decree of the High Court (January 19, 1939) which had reversed the order of a single judge of the same High Court in its ordinary original civil jurisdiction (March II, 1938) and had restored the order of the First Assistant Registrar of the High Court (September 3, 1937).

Law. Rep. 70 Ind. App. 50 ( 1942- 1943) Bhavani Shankar Joshi V. Gordhandas Jamnadas

2

The following facts are taken from the judgment of the Judicial Committee This appeal arose out of an application made under r. 16 of Order xxi. of the Code of Civil Procedure. On February 19, 1924,

F. Friedmanns Diamanthandel Maatschappij (F. Friedmanns Diamond Trading Co., Ld.), (respondent No. 2), herein called " the Dutch company," obtained from the High Court at Madras in its original jurisdiction a decree for Rs.24,207-4-0 with certain interest and costs against one Ramanath Joshi, the appellants father. He died on September 15, 1924, and on February 8, 1927, leave was given by the High Court to execute the decree against the appellants as his legal representatives. The second appellant was at that time a minor, but that fact was at first overlooked. On January 26, 1935, application was made to the High Court under r. 16 of Order xxi., by one Gordhandas Jamnadas (respondent No. 1), who claimed to have taken an assignment, dated November 8, 1933, of the decree, and asked for sale of certain immovables of the judgment debtors situate within the High Courts original jurisdiction, and for an attachment of a decree which they had obtained in a court at West Tanjore. An order having been irregularly made on October 22, 1935, without any guardian ad litem for the minor, one Venkatesa Tarwadi was appointed guardian in April, 1936, and by affidavit dated April 24, 1936, he set up certain objections to the application. He said, first, that the assignment of November 8, 1933, had been executed by one Shantilal Lallubhai Pandya whose power of attorney did not authorize him to assign the decree secondly, that the decree had been adjusted by an arrangement for payment to the Dutch company of a sum of Rs.4277-4-0 by way of composition at the rate of three annas in the rupee ; that the alleged transferee, Gordhandas Jamnadas, had agreed to make that payment on the judgment debtors behalf and had in fact paid it to the Dutch company, though no steps had been taken to get the payment recorded thirdly, that thereafter Shantilal and Gordhandas Jamnadas had in fraud of the judgment debtors executed the assignment of November 8, 1933.

The second appellant came of age, and his guardian was discharged by order of July 20, 1937. On September 3, 1937, the Registrar allowed the application under r. 16, recognized the assignment and directed execution to proceed against the properties which had been mentioned in the application. On appeal to Gentle J. that order was set aside on March 11, 1938. The learned judge held that Shantilals power of attorney did not authorize him to assign the decree, and dismissed the application under r. 16. On appeal to a Division Bench the Registrars order was restored by decree dated January 19, 1939. Leach C.J. and Madhavan Nair J. held that though Shantilals power of attorney did not authorize him to assign the decree, his principals, the Dutch company, had ratified his action .in making the assignment. They rejected the allegation of fraud as unproved, and refused to inquire into any alleged adjustment of the decree as none had been recorded under r. 2 of Order xxi.

By the Code of Civil Procedure Order xxi., r. 16 " Where "a decree .... is transferred by assignment in writing " or by operation of law, the transferee may apply for execution "of the decree to the Court which passed it; and the decree "may be executed in the same manner and subject to the "same conditions as if the application were made by such "decree-bolder

"Provided that, where the decree .... has been transferred by assignment, notice of such