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Budaraju Hanumantha Rao Vs. Allamneni Krishnamma and ors. - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported in70Ind.Cas.329
AppellantBudaraju Hanumantha Rao
RespondentAllamneni Krishnamma and ors.
Cases Referred and Latchrnanan Chetty v. Ramanathan Chetty
Excerpt:
civil procedure code (act v of 1908), section 47, order xxi, rules 15, 16 - contest between joint decree-holders, whether falls under section 47--question arising between parties to suit, meaning of--order under order xxi, rules 15, 16--appeal, whether lies--application by transferee for permission to execute-other matters decided-estoppel. - - 24 of 1921 on the file of the high court) we must, therefore, set aside the rejection of these applications on the bar of res judicala and remand them to the lower court for determination on the merits after finding to what extent the decrees now sought to be executed have been already satisfied and for passing such orders as may be necessary under order xxi, rules 15 and 16 for the protection of their interests......guntur a joint mortgage decree for rs. 12,000 was passed in favour of two co-plaintiffs. the 2nd decree-holder (4th respondent) transferred his interest in the decree to respondents nos. 1 and 3 who applied to the court for recognition of the transfer which, in the absence of opposition, was ordered. an application for execution of a joint decree by a transferee of the interest of one decree-holder has to be made under order xxi, rule 16 (section 232 of the code of 1882), and the. court ordinarily imposes conditions for the protection of the interests of the judgment-debtors and the other decree-holder.2. in this case, before the transfer was effected, there was a settlement, alleged to have taken place out of court by means of a sale of the equity of redemption to a brother of the 2nd.....
Judgment:

Spencer, J.

1. In Original Suit No. 16 of 1905 on the file of the District Court of Guntur a joint mortgage decree for Rs. 12,000 was passed in favour of two co-plaintiffs. The 2nd decree-holder (4th respondent) transferred his interest in the decree to respondents Nos. 1 and 3 who applied to the Court for recognition of the transfer which, in the absence of opposition, was ordered. An application for execution of a joint decree by a transferee of the interest of one decree-holder has to be made under Order XXI, Rule 16 (Section 232 of the Code of 1882), and the. Court ordinarily imposes conditions for the protection of the interests of the judgment-debtors and the other decree-holder.

2. In this case, before the transfer was effected, there was a settlement, alleged to have taken place out of Court by means of a sale of the equity of redemption to a brother of the 2nd decree-holder, and a mortgage for Rs. 9,000 in favour of the first decree-holder.

3. The respondents were permitted to execute the decree as if there had been no adjustment, and the legal representatives of the first decree-holder, who are appellants in the appeals before us, objected to execution, but the District Judge over-ruled their objections, and they now appeal.

4. A preliminary objection has been taken that no appeal lies on the ground that the matter in dispute, not being a question arising between the parties to the suit in which the decree was pissed, does not come within the scope of Section 47, Civil Procedure Code.

5. It was laid down so long ago as 1871, in Gooroo Doss Roy v, Ram Rungince Dossia 17 W.R. 136 and Odhoya Pershad v. Mohadeo Dutt Bhandaree 17 W.R. 415 respectively that disputes between co-decree-holders as to the right of one to execute a joint decree to the exclusion of the other were not questions arising between the parties to a suit, Disputes between, judgment-debtors inter, se as to possession of property after satisfaction of a decree similarly would not satisfy the conditions of this section see. Anavarda Khan v. Misri Khan 35 Ind Cas. 179 To come within the category of Section 47, they must be questions arising between persons opposed in interest in the suit and not between a party, to the suit and his own representative vide Yagnasami Iyer v. Chidambaranatha Mudaliar 65 Ind. Cas. 732 and Maganlal v. Mulji 3 Bom. L.R. 255. Persons may be parties opposed to each other without necessarily being arraigned as plaintiff and defendant respectively to the. Suit Vide Samalapalli Mangayya v. Smalapalli Sriramulu 19. Ind. Cas. 448 : 13 M.L.T. 347 . Even a defendant who has been exonerated, from a suit would on a liberal construction be treated as one of the 'parties to the suit' within the meaning of Section 47 Vide Ramaswami Sastrulu v. Kameswarama 10 M.L.J. 126.

6. No appeal is provided against an order under Order XXI; Rule 15 or Rule 16 cf. Ratanlal v. Bai Gulab 12 Ind. Dec. 653.

7. It is only when such orders determine questions arising between parties to the suit or their representatives that they become appealable as decrees passed under Section 47, Civil Procedure Code. Vide Lakshmi Ammah v. Ponnassa Menon 6 Ind. Dec 273 and Maganlal v. Mulji 3 Bom. L.R. 255. A question whether a decree has been discharged is a question relating to the execution, discharge or satisfaction of the decree, and, as observed by Napier, J. in Thimmi Reddi v. Subba Reddiar 49 Ind. Cas. 141 . to allow one of several joint decree-holders who have already received payment to come in and apply for execution after the other decree-holders have certified discharge of the debt would open the door to fraud and defeat the object of Order XXI, Rule 15.

8. In the present case the applications were made to the District Court quoting Sections 47 and 151 as the provisions under which the Court had authority to Article. They were not, as now suggested, applications under Order XXI, Rule 2 to record satisfaction of the decree. The appellants before us were interested not merely as being legal representatives of one of the decree-holders, but also, as being holders of mortgages over portions of the judgment-debtors properties, they had acquired in some degree the interest of defendants. The District Judge's order does not disclose under what provision of law he purported to be disposing of these applications, but apparently it was Section 47, as that section was entered at the head of the applications and no objection was the taken to his procedure. Even if the case does not strictly fall under that section the Judge Section order would be appealable if he purported to act under that section, See Adbul Rahiman Saheb v. Ganapatki Bhatta 10 M.I.J. 305 and Latchrnanan Chetty v. Ramanathan Chetty 14 M.L.J. 436

9. The preliminary objection, therefore, fails and we must proceed to dispose of the appeals on their merits.

Odgers J.

10. I agree.

11. The District Judge has dismissed these applications on the sole ground that the applicants were barred by res judicata from raising a question as to the complete satisfaction of the decree in Original Suit No. 17 of 1905 and the partial satisfaction of the decree in Original Suit No. 16 of 1905 by reason of the prior proceedings of the District Judge, of August 20th, 1918, passed in Execution Petition, Nos. 12 and 13 of 1917 and Execution Applications Nos. 175 and 176 of 1918 recognizing the transfer of the 2nd decree-holders Interest and permitting execution by the transferee decree-holders to pro

12. The appellants were not present those earlier proceedings. The notice which was sent to them put them on notice of two things: (1) that the transferee decree holders had purchased the rights and liabilities of the 2nd plaintiff, and (2) of their intention to apply for permission to execute the decree in Original Suit No. 17 of 1905. The two decrees were being executed together. It is not denied that a balance was outstanding on one. The transferee decree-holder's application was for permission to execute the decrees for the benefit of all the decree-holders. They may not have wished to oppose execution proceedings being taken out partly for their own benefit or to resist the transfer of their co-decree-holder's interest to a third party.

13. No doubt, they were interested in any settlement of the amount for which, the decrees were executable and the properties liable to be sold in execution, and if they had then had notice that these matters were about to be determined, they might have come to Court and insisted on their objections being heard under the proviso to Rule 16 of Order XXI and might have applied to the Court for an order under Rule 15(2) for the protection of their interests. But the notice, dated November 3rd, which was sent to them, did not contain any indication that the Court was going to decide any questions as to satisfaction of the decrees or as to priority of the decree-holder's claims. This being so they are not stopped in these subsequent proceedings from disputing their co-decree-holder's claims to execute the whole of the decrees against any of the judgment-debtor's properties : See Narayana pattar v. Gopalakrishna Pattar 15 M.L.J. 247. We are unable to support the learned District Judge's opinion that they are barred by res judicata from re-opening what was decided in his predecessor's orders of August 20th. We have read the District Judge's two orders of that date. We do not find that they contain any final determination of any matter which was directly and substantially in issue between, the respondents and these appellants in. those proceedings (compare Appeal against : Appellate Order No. 24 of 1921 on the file of the High Court) We must, therefore, set aside the rejection of these applications on the bar of res judicala and remand them to the lower Court for determination on the merits after finding to what extent the decrees now sought to be executed have been already satisfied and for passing such orders as may be necessary under Order XXI, Rules 15 and 16 for the protection of their interests. Costs to abide and to be provided in the final order.


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