1. The petitioner assigned her interests in a mortgage decree to respondent 1 benami for respondent 2, and application was made by the former for recognition of the transfer Under Order 21, Rule 16, Civil P.C. In that proceeding the petitioner filed an objection that the full amount of the consideration of Rupees 1,500 had not been paid, but at the hearing she was absent and the Court found that this was not true and recognized the assignment and allowed execution. The petitioner has now sued in forma pauperis to recover the balance of the consideration and the learned District Munsif of Anantapur has dismissed the application on the ground that the suit is barred by virtue of the previous proceedings.
2. If it is so brarred it must be because the question of the payment of the consideration is res judicata by virtue of the decision passed in the execution proceedings. It is conceded before me that the mere nonpayment, in full or at all of the consideration for assignment, if it is not coupled with some such allegation as that the assignment itself was nominal or invalid for some other reason, is a purely irrelevant question when the Court comes to consider Under Order 21, Rule 16, whether that assignment should be recognized. I am asked to hold not only that the petitioner made the objection which she did about the nonpayment of the consideration but thai; she went further, or at any rate intended to go further, and said that it was agreed between her and the transferee that payment was to be a condition precedent to recognition of the transfer. There is certainly nothing of this in the statement which she is described as making, because although she seems to have said that she received only Rs. 200 out of the consideration and that the balance was still due, she admitted the execution of the transfer. I cannot therefore presume that by any special condition in the transfer the question of payment of consideration became anymore re evant than it would normally be if no such condition were present. That being so it appears to me that a fatal objection to holding that tins decision is res judicata is that, in the language of Section 11, Civil P.C., it was not a question directly and substantially in issue in the former proceeding between the same parties. In other words, if the transferor had appeared and successfully contested the question of consideration the Court would yet have had to hold that the transfer was valid and to have ordered execution to proceed: see Rami Reddi v. Venkatanarasimhulu, : AIR1928Mad458 . I think accordingly that the District Munsif has not found a valid reason for dismissing the application for leave to sue in forma pauperis, and allowing the petition with costs I direct him to restore it to his file and to dispose of it in accordance with law.