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Subba Naicker and anr. Vs. Saminatha Iyer and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Judge
Reported in1Ind.Cas.353
AppellantSubba Naicker and anr.
RespondentSaminatha Iyer and anr.
Cases ReferredBadri Narain v. Jai Kishen Das
Excerpt:
civil procedure code (act xiv of 1882), section 232 - assignment of rights under decree--execution application by assignee--attachment of decree prior to the hearing of assignee's application, but after the date of assignment--whether attachment bars assignee's right to be recognised by court as such. - - ' in that case, the transfer had not been recognized by the court and the transferee having failed to recover under the decree sued the transferor for the amount he had failed to realize......was not made until the 2nd september 1907. we are of opinion that the transfer of the decree was a complete transfer at the date of the assignment of it in writing and that it was not conditional upon the court permitting the transferee to execute the decree. there is nothing in section 232 of act xiv of 1882 to the contrary. that section, on the other hand, seems to recognize that the completion of the transfer does not depend upon any sanction of the court, for it begins by saying, 'if a decree' be transferred by assignment in writing &c.; we have been referred to puthiandi mammed v. avalil moidin 20 m. 157, which opens by saying: 'all that the plaintiff got in law for the money he paid to the defendant for the transfer of his decree was an agreement to transfer it, not a complete.....
Judgment:

1. The assignment in this case was on the 10th and 14th April 1907, and the application by the transferees, under Section 232 of Act XIV of 1872, was made on the 25th July 1907. The attachment of the decree which was the subject of the assignment was not made until the 2nd September 1907. We are of opinion that the transfer of the decree was a complete transfer at the date of the assignment of it in writing and that it was not conditional upon the Court permitting the transferee to execute the decree. There is nothing in Section 232 of Act XIV of 1882 to the contrary. That section, on the other hand, seems to recognize that the completion of the transfer does not depend upon any sanction of the Court, for it begins by saying, 'if a decree' be transferred by assignment in writing &c.; We have been referred to Puthiandi Mammed v. Avalil Moidin 20 M. 157, which opens by saying: 'All that the plaintiff got in law for the money he paid to the defendant for the transfer of his decree was an agreement to transfer it, not a complete transfer until recognized by the Court.' In that case, the transfer had not been recognized by the Court and the transferee having failed to recover under the decree sued the transferor for the amount he had failed to realize. The remark above extracted is no doubt apparently against the view, but the precise question which we are now considering did not directly arise. We are supported by the decision in Abboy Naidu (Transferee Decree-Holder) v. Muthukrishna Naidu and another (Appeal against Order No. 14 of 1906), which follows Badri Narain v. Jai Kishen Das 16 A. 483. There having been a complete assignment prior to the attachment, the fact of the attachment is in itself no ground for refusing to allow the transferees to execute the decree. We reverse the order of the Subordinate Judge and remand the petition for disposal according to law. Costs will abide the event.


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