Bombay High Court
Kassum Goolam Hussein Vazir vs Dayabhai Amarsi on 3 August, 1911
Equivalent citations: (1911)13BOMLR973, 12IND. CAS.547
JUDGMENT Basil Scott, Kt., C.J.
1. In this case a darkhast for execution was applied for by the assignee of the decree.
2. Rule 16 of Order XXI provides that where a decree is transferred by assignment the transferee may apply for execution of the decree and the decree may be executed as if the application had been made by the decree-holder subject to this proviso that where the decree has been transferred by assignment, notice of the application for execution 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.
3. Being aware of the provisions of that Rule the transferee applied on the 18th of June 1910 for notices to the transferor and the judgment-debtor. He applied at the same time for attachment by seizure of the goods of the judgment-debtor in his shop. On the same day notices were issued by the Court and also a warrant of attachment. Before any objection had been heard on the part of the judgment-debtor the property was attached in his shop by seizure by the sheriff's officer on the 20th of June 1910.
4. Then on the 21st of June an application was made by the judgment-debtor to the Court and an order was made that the bailiff should not remove the property until after the objections had been heard.
5. The hearing of the objections commenced on the 26th of June and the hearing was concluded on the 6th of August. The Court then held that the plaintiff was entitled to execution of the decree against the judgment-debtor. Thus, it appears that the property of the judgment-debtor had been attached in execution for a month and a half before his objections had been finally heard. The attachment was effected in the manner most prejudicial to the reputation of the defendant by the open seizure of the goods in his shop. It has been held, however, by the lower Courts that although the provisions of the Code have been violated to the great prejudice of the defendant, it is a mere irregularity and the proceedings in attachment should not be set aside. We cannot agree in this view. The legislature has provided in express terms that the decree shall not be executed until the objections have been heard. One of the modes provided by the Code for execution of decrees is by attachment and sale of the property. The execution of the decree had commenced by the attachment. We think that this was unlawful and not merely irregular as the objections of the judgment-debtor had not been heard.
6. We, therefore, set aside the order of the lower appellate Court and dismiss the datkhast with costs throughout upon the decree-holder.