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Anant Vinayak Vs. Nagappa Subraya - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Case NumberSecond Appeal No. 419 of 1907
Judge
Reported in(1908)10BOMLR89
AppellantAnant Vinayak
RespondentNagappa Subraya
Excerpt:
civil procedure code (act xiv of 1882), section 232, clause (b)-decree for money -assignment in writing-transfer to one of the judgment-debtors-execution proceedings by the transferee-contribution suit.; it was directed by a decree that n should pay rs. 90 and rs. 11-5-3 as costs, and a should pay rs. 30 with rs. 3-12-4 as costs. a afterwards took a transfer of the decree to him by an assignment in writing: and applied to execute it against n to the extent of the rs. 90 and the rs. 11-5-3. the application was rejected on the ground that it came within clause (6) of section 232 of the civil procedure code :-; that the decree for money so far as it related to the rs. 90 and costs was not a decree against several persons but against one person that is n, and so far as that part of the..........be recovered against nagappa, the present respondent, and rs. 30 with rs. 3-12-4 as costs against anant, the present appellant.2. the appellant anant has taken a transfer of the decree by assignment in writing and he has applied for execution of this decree against nagappa to the extent of the rs. 90 and the rs. 11-5-3.3. his application has been rejected on the ground that, it comes within clause (5) to section 232 of the code of civil procedure. that clause provides that 'where a decree for money against several persons has been transferred to one of them, it shall not be executed against the others'.4. now the purpose of that clause was, not to deprive the transferee of a decree who might happen to be one of the judgment-debtors, of all relief, but to impose upon him the duty of.....
Judgment:

Lawrence Jenkins, C.J.

1. This appeal arises out of proceedings in execution of a decree whereby it was directed that Rs. 90 and a sum of Rs. 11-5-3 as costs be recovered against Nagappa, the present respondent, and Rs. 30 with Rs. 3-12-4 as costs against Anant, the present appellant.

2. The appellant Anant has taken a transfer of the decree by assignment in writing and he has applied for execution of this decree against Nagappa to the extent of the Rs. 90 and the Rs. 11-5-3.

3. His application has been rejected on the ground that, it comes within Clause (5) to Section 232 of the Code of Civil Procedure. That clause provides that 'where a decree for money against several persons has been transferred to one of them, it shall not be executed against the others'.

4. Now the purpose of that clause was, not to deprive the transferee of a decree who might happen to be one of the judgment-debtors, of all relief, but to impose upon him the duty of proceeding by what was considered a more appropriate procedure, that is, a suit for contribution. Such a remedy is not open to the present appellant. Therefore one must see why he should be debarred from proceeding.

5. It is true that the direction against Anant and the separate direction against Nagappa are contained on one and the same piece of paper and were passed in the same suit. But for all that they are decrees for separate sums of money, and might equally will have been passed in separate suits; so that we do not think the fact of their being on one piece of paper can control the matter.

6. In our opinion the decree for money so far as it relates to the Rs. 90 and costs was not a decree against several persons but against one person, that is Nagappa; and so far as that part of the decree is concerned, we do not think that the transfer of it to Anant comes within Clause (b) of Section 232 of the Code of Civil Procedure.

7. Therefore we hold that the decision of the District Judge was erroneous. It must, therefore, be reversed and the case sent back in order that it may be restored to the file and heard on its merits.

8. The costs of this appeal will be costs in the application.


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