Proper service of notice is essential for jurisdiction under Order 21, Rule 16, Civil P.C., and failure to comply renders the order void, along with subsequent proceedings dependent on the void order.

Curgenven, J.

1. This appeal arises out of execution proceedings under a consent decree awarding the decree-holder the sum of Rs. 5,845-10-8 to be realized out of the assets of one Nur Muhamad Usman Saheb, deceased, in the hands of the defendants and out of the assets in their hands of the business in which he was a partner. Of the defendants, the first and second were surviving partners, while the third was the widow of the aforesaid Nur Muhamad Usman Saheb. The earliest execution application to which we have been referred was to transfer the decree to the Sub-Court of Shimoga, and this was ordered on 7th December 1927. Then while execution was pending there, on 24th February 1928, the decree-holder assigned the decree to the present appellant. In E.P. 146 of 1928 this transferee decree-holder applied under Order 21, Rule 16, Civil P.C., for leave to execute the decree and to continue the proceedings at Shimoga. This was ordered on 19th April 1928, the order reciting that the defendants did not appear in person or by pleader, though served with a copy of the notice of the application. Subsequently, on 1st September 1928, defendant 3 died and in E.P. No. 21 of 1929 the appellant applied to execute the decree against her legal representatives, consisting of a mother, four brothers and a sister. A month later, on 25th April 1929, one of these legal representatives, S. Kamaruddin Saheb, moved the Master, who had passed the order in E.P. 21 of 1929, to call on the appellant to show cause why the earlier order recognizing the transfer should not be set aside, the proceedings in E.P. 21 stayed and such other orders as might be appropriate passed. The principal ground alleged was that the appellant had secured re-cognition of his transfer without taking out or serving any notice on defendant 3. It was further asserted that only two out of the six legal representatives received notice of the later application, E.P. 21. The learned Master found it to be a fact that defendant 3 had no notice of the application under Order 21, Rule 16, and accordingly gave the legal representatives a further opportunity to show cause why the appellant should not execute the decree against the assets of defendant 3 in their hands. This order has been confirmed by the learned Chief Justice against whose decision this appeal is preferred.

2. It is admitted that defendant 3 was not served in E.P. 146, and this omission, it is not contested, renders the order void as against her and her legal representatives. It is an indispensable condition of jurisdiction under Order 21, Rule 16, that the first proviso to that rule, relating to notice, should be complied with: see Kassum Goolam Hosein v. Dyabhai Amarsi [1912] 36 Bom. 58 and Sreenath Das v. Achutananda Mahanti [1910] 6 I.C. 262. There can be no doubt therefore that, considered by itself, this order was rightly revoked. An attempt has however been made to found an argument upon the existence of the subsequent order to execute passed against the legal representatives in E.P. 21. It is said that these latter proceedings gave those representatives an opportunity to contest the right of the transferee decree-holder to execute, that they omitted to do so and that accordingly the matter is now res judicata. This position cannot however be sustained, we think, in the circumstances of this case. The contesting legal representative asserts that he only heard after the order in B.P. 21 had been passed, that defendant 3 had not been served in E.P. 146, and we must take it, in the absence of evidence to the contrary, that, when the latter order was passed, it was believed that defendant 3 had had an opportunity of contesting the order under Order 21, Rule 16. If that had been so, it would not have been open to the legal representatives to contest the transferees right in B.P. 21, and accordingly that question was not one which, in the language of Expln. 4, Section 11, Civil P.C., "might and ought to have been made