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Madhya Pradesh High Court · body

1984 DIGILAW 683 (MP)

Kanhoji Angre v. M. P. State Financial Corporation Indore

1984-11-09

RAMPAL SINGH

body1984
ORDER Rampal Singh, J.- 1, Kanhoji Rao the appellant, has preferred this appeal against the order passed by the Fifth Additional Judge to the Court of District Judge, Gwalior, Shri S.S. Trivedi, dated 20-2-1984. 2. A decree was passed on 7th May, 1975 against one Chandroji Rao Angre and others. During the execution proceedings of the said decree, Chandroji Rao Angre died, leaving Shahaji Rao, Sambhaji Rao and Shivaji Rao, his sons, Laxmibai-his widow and Premlatika-the daughter. The decree was being executed by the Decree-holders and on 21-11-1983, Kanhoji Rao, the appellant filed an application, praying therein that he be impleaded as a party in this execution proceeding. In that application, he submitted that the various properties which have been attached and sold, were his joint family properties and he is an assignee of the properties situated in Gwalior city. He further stated that the said assignment was made by his father and hence prayed therein under Order 22 rule 10 of the Code of Civil Procedure, that he be impleaded as a party. After filing this application, when the arguments were to be heard, he filed an affidavit on 4-1-1984 supporting the contentions in his application, 3. The reply opposing the said application was filed by the respondents in the Executing Court. They opposed this application of Kanhoji Rao. The contentions raised by Kanhoji Rao before the Executing Court were rejected by it, hence this civil Misc. Appeal, 4. The main contention of the appellant is that the respondents did not tile any affidavit and thus his affidavit filed on 4-1-1984 was not controverted on oath. As such the Executing Court should have believed that he was the assignee. He further contended before me that the provisions of order 22, rule 10 of the Code of Civil Procedure are applicable to the execution proceedings and therefore the executing Court should have enquired into the factum of assignment and should have afforded him with an opportunity to adduce evidence. 5. I have gone through the record and it is apparant from the record that the properties of late Chandroji Rao Angre and others were, in the execution of the decree passed on 7th May, 1976, attached on 13-10-1969. 5. I have gone through the record and it is apparant from the record that the properties of late Chandroji Rao Angre and others were, in the execution of the decree passed on 7th May, 1976, attached on 13-10-1969. It is also apparent from the record that on 28-6- 1983, Kanhoji Rao Angre, the appellant had filed an application that the judgment-debtors have no objection in the sale and auction of the attached properties which now he says were assigned to him by his father. 6. Section 64 of the Code of Civil Procedure provides that where an attachment has been made, any private transfer or delivery of the property attached or of any interest therein and any payment to the judgment-debtor of any debt,-divident or other monies contrary to such attachment, shall be void...." Assuming the fact of assignment to be true as stated by the appellant in his application, assignment shall be void according to section 64 of the Code of Civil Procedure. A void transaction has no force of law and if the executing Court refused to make enquiries the order of the executing Court cannot be said to be wrong. The assignment is said according to the application of the appellant, to be during the course of attachment of properties. It is, therefore, clear that the assignment, even if true, shall be void in law. 7. The appellant has taken contrary stands. In one breath he says that the attached properties are joint family properties and it is settled that there cannot be an assignment of the joint family property. Order 22, Rule 10 of the Code of Civil Procedure provides that in other cases of assignment creation or devolution of any interest during the pendency of a suit, the suit may, by leave of the Court, be continued by or against the person to whom such interest has come or devolved No doubt, this provision can be said to be applicable in an execution proceeding. yet when the devolution it self was void, there was no necessity for the Executing Court to enquire into the matter whether the assignment has been made of the attached properties in favour of the appellant or not. 8. It is also apparent from the record that the father of the appellant, Shahaji Rao, respondent No.5, has also opposed this application. 8. It is also apparent from the record that the father of the appellant, Shahaji Rao, respondent No.5, has also opposed this application. It is thus clear that the factum of assignment, as alleged by the appellant, was controverted by his own father This application was not supported by any documentary evidence. Therefore, the executing Court was right in rejecting the contentions. A person who comes forward claiming as a legal representative or an assignee under Order 22, Rule 11 of the Code of Civil Procedure must derive his right directly and not through any intermediary from the party to the suit or proceedings. Section 146 of the Code of Civil Procedure cannot avail the applicant claiming through an intermediary since it cannot be read divorced from Order 22, Rule 10. (See Champalal v. Sonabai) AIR 1946 Nag. 164. 9. In the result, this appeal having no force is dismissed. There shall be no order as to costs. The execution proceedings are quite old. The executing Court is directed to conclude the proceedings as early as possible.