- (1.) The facts leading up to this appeal are few and simple. Two persons named Mahomedali Habib and Sakerkhanoo Mahomedali Habib used to carry on business as merchants and pucca 'adatias' in bullion and cotton at Bombay under the name and style of Habib and Sons. In 1948 that firm instituted a suit in the Bombay City Civil Court, being Summary Suit No. 233 of 1948, against the present appellant Jugalkishore Saraf, a Hindu inhabitant carrying on business at Bombay, for the recovery of Rs. 7,113-7-0 with interest at 6 percent per annum said to be due by him to the firm in respect of certain transactions in gold and silver effected by the firm as pucca 'adatias'. On 7-2-1949 when that summary suit was still pending a document was executed whereby it was agreed that the two partners would transfer and Messrs. Raw Cotton Company, Limited, (hereinafter called the respondent Company) would accept the transfer of 'inter alia', all book and other debts due to them in connection with their business in Bombay and full benefit of all secirities for the debts and all other property to which they were entitled in connection, with the said business. The respondent company did not take steps under O. 22, R. 10, Civil P. C. to get themselves substituted as plaintiffs in the place and stead of Habib and Sons, the plaintiffs on record, but allowed the suit to be continued in the name of the original plaintiffs. Evidently, the two partners migrated from India to Pakistan and their properties vested in the Custodian of Evacuee Property. On 15-12-1949 a decree was passed in the summary suit for the sum of Rs. 8,018-7-0 for the debt and interest and the sum of Rs. 410 for costs of the suit, aggregating to Rs. 8,428-7-0, and for further interest at 4 per cent per annum from the date of the decree until payment. Habib and Sons being the plaintiffs on record the decree was passed in their favour.
(2.) On 11-12-1950 the Custodian of Evacuee Property, Bombay, informed the respondent company that by an order made on 2-8-1950 the Additional Custodian of Evacuee Property had confirmed "the transaction of transfer" of the business of Habib and Sons to the respondent company.
(3.) On or about 25-4-1951 the respondent company presented before the Bombay City Civil Court a tabular statement purporting to be an application for execution under O. 21, R. 11, Civil P. C. In the last column of the tabular statement, under the heading "The mode in which the assistance of the Court is required", the respondent company prayed that the Court "be pleased to declare the Applicants the assignees of the decree as the decretal debt along with other debts had been transferred by the plaintiffs to the Applicants by a deed of assignment dated 7-2-1949 which was confirmed by the Custodian of Evacuee Property, Bombay, and order them to be substituted for the plaintiffs." There was, in that column, no specification of any of the modes in which the assistance of the Court might be required as indicated in Clause (j) of O. 21, R. 11 of the Code. On 10-5-1951 the Bombay City Civil Court issued a notice under O. 21, R. 16 of the Code to Habib and Sons, who were the decree-holders on record, and Jugalkishore Saraf, who was the defendant judgment-debtor, requiring them to show cause why the decree passed in the suit on 15-12-1949 in favour of the plaintiffs and by them transferred to the respondent company, should not be executed by the said transferees against the said defendant judgment-debtor. The defendant judgment-debtor showed cause by filing an affidavit affirmed by him on 15-6-1951. Amongst other things, he denied that the document in question had been executed or that the document transferred the decree to the respondent company.;