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Bamasamiengar Vs. Andapillai - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtChennai
Decided On
Reported in(1896)6MLJ252
AppellantBamasamiengar
RespondentAndapillai
Excerpt:
- .....and that notice was given to the father. ' these facts alter the position considerably. the effect of the decree in the partition suit was to make the son, by operation of law, an assignee of 1/5th of the judgment-debt in the suit brought by his father. such an assignee has a right, if the original decree-holder and other assignees (if any) do not consent to join him in applying for execution, to apply himself for execution of the whole decree, making them counter-petitioners by giving them notice. otherwise he would have no means of obtaining his rights under his assignment but by a aspirate suit, and there seems no reason why he should be driven to such a circuitous course when by applying for execution the rights of all parties can be properly determined by the court.2. in this.....
Judgment:
ORDER

1. At the hearing of the appeal our attention was not drawn to the facts that the son applied for execution of the whole decree stating that his father would not join him in such application and that notice was given to the father. ' These facts alter the position considerably. The effect of the decree in the partition suit was to make the son, by operation of law, an assignee of 1/5th of the judgment-debt in the suit brought by his father. Such an assignee has a right, if the original decree-holder and other assignees (if any) do not consent to join him in applying for execution, to apply himself for execution of the whole decree, making them counter-petitioners by giving them notice. Otherwise he would have no means of obtaining his rights under his assignment but by a aspirate suit, and there seems no reason why he should be driven to such a circuitous course when by applying for execution the rights of all parties can be properly determined by the Court.

2. In this view no question arises as to the effect of Explanation I to Article 179 of Sch. II of the Limitation Act. The decree was passed not in favor of more persons than one, whether jointly or severally, but in favor of one person, viz, the father and the explanation has therefore no application to the case and the application for execution by the son as transferee of part of the decree having been an application in accordance with law is sufficient to keep the decree alive under Article 179, C1. 4 of Sch. II to the Limitation Act.

3. We allow the Review and set aside our former order and the order of Mr. Justice Wilkinson and restore the order of the District Court. Counter-potitioner will pay the costs of the Petitioner, of the Appeal before Mr. Justice Wilkinson. There will be no costs of the appeal under the Letters Patent and of this application for Review.


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