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Sevugan Chetty Vs. Obla Munisami Aiyar and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported in(1910)20MLJ524
AppellantSevugan Chetty
RespondentObla Munisami Aiyar and ors.
Cases ReferredIn Chail Behari Lal v. Rahmal Das I.L.R.
Excerpt:
- - it is well established that an attaching creditor, even of a money decree, is not an assignee of the decree nor has he a charge upon it. he is entitled, no doubt, to apply for execution of the decree so attached for the satisfaction of his own decree, and for that purpose he may well be deemed to be representative of the decree-holder within the meaning of section 244 of the civil procedure code of 1882 as held in krishnan v. ..3. in compliance with the above order, the district judge of madura submitted that there is no reliable evidence to prove and no circumstances from which it can be presumed that the proceedings which led to the setting aside of the decree in o......that an attaching creditor of a decree is not entitled to be made a party to an appeal against the decree attached by him, and we think that the principle of that decision is applicable to this case. there is still, however, the question to be decided whether the proceedings which led to the setting aside of the decree attached by the respondents in this appeal were not collusive and fraudulent, instituted with the object of defeating the rights of the respondents, and on this point we have no finding of either court. we, therefore, direct the district judge to return a finding on this question. he is to allow the parties to adduce fresh evidence if they chose to do so.2. the finding should be submitted in eight weeks, and ten days will be allowed for filing objections....3. in.....
Judgment:

1. We are not prepared to accept the view taken by the District Judge that the opposite party' in Section 109 of the Civil Procedure Code of 1882 includes a person who has attached the ex-parte decree in question. The plain meaning of the section seems to be that only the party on record is entitled to the notice mentioned in that section. It is well established that an attaching creditor, even of a money decree, is not an assignee of the decree nor has he a charge upon it. He is entitled, no doubt, to apply for execution of the decree so attached for the satisfaction of his own decree, and for that purpose he may well be deemed to be representative of the decree-holder within the meaning of Section 244 of the Civil Procedure Code of 1882 as held in Krishnan v. Venkatapathi Chetti I.L.R. (1905) M. 311. But that does not show that he has an interest in the decree within the meaning of Section 372 of the Civil Procedure Code of 1882. In Chail Behari Lal v. Rahmal Das I.L.R. (1890) A 38 it was decided that an attaching creditor of a decree is not entitled to Be made a party to an appeal against the decree attached by him, and we think that the principle of that decision is applicable to this case. There is still, however, the question to be decided whether the proceedings which led to the setting aside of the decree attached by the respondents in this appeal were not collusive and fraudulent, instituted with the object of defeating the rights of the respondents, and on this point we have no finding of either Court. We, therefore, direct the District Judge to return a finding on this question. He is to allow the parties to adduce fresh evidence if they chose to do so.

2. The finding should be submitted in eight weeks, and ten days Will be allowed for filing objections....

3. In compliance with the above order, the District Judge of Madura submitted that there is no reliable evidence to prove and no circumstances from which it can be presumed that the proceedings which led to the setting aside of the decree in O.S. 56a of 1903 were collusive or fraudulent, instituted with the object of defeating the rights of the attaching creditors (respondents in the High Court.)

4. This appeal coming on for final hearing after the return of the finding of the lower appellate Court, the Court delivered the following.

5. We accept the finding, and reversing the order of the District Judge, we restore that of the District Munsif with costs in this and in the lower appellate Court.


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