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M.R. Srinivasa Ayyangar Vs. Venkatarama Ayyar - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported inAIR1933Mad215; 145Ind.Cas.767
AppellantM.R. Srinivasa Ayyangar
RespondentVenkatarama Ayyar
Cases ReferredSalig Ram v. Ishar Das Dharam Chand A.I.R.
Excerpt:
- - attention may be drawn also to the provisions of order 21, rule 18(2), which indicate that the rule laid down by order 21. rule 18, shall be deemed to apply even when either party is an assignee of one of the decrees, as well in respect of judgment-debts due by the original assignor as in respect of judgment debts due by the assignee himself. it was held in those circumstances that as no advantage was taken of the order declaring a right to set off the execution court at amritsar could not be effectively moved to pass orders in this respect after the other decrees were withdrawn from it and transferred to the karachi court for execution......the petitioner srinivasa ayyangar in the same court in s.c.s. no. 1101 of 1926 for rs. 66. the decree-holder in s.c.s. no. 883 of 1926 applied for satisfaction being entered in respect of the amount of rs. 66 odd due by him under the decree in s.c.s. no. 1101 of 1926. the lower court refused to grant that request and accordingly the decree-holder in suit no. 883 of 1926 hud preferred one of the two revision petitions. the decree-holder in s.c.s. no. 1101 of 1926 assigned his rights under the decree to one venkataramaier. venkataramaier applied to the court which passed the decree, namely, the subordinate judge's court of west tanjore, under order 21, rule 16, for recognizing him as assignee decree-holder and for execution of the decree in 1101 of 1926. in spite of the protest raised.....
Judgment:

Anantakrishna Ayyar, J.

1. These are two revision petitions filed by the decree-holder (Srinivasa Ayyangar) in S.G.S. No. 883 of 1926 on the file of the Subordinate Judge's Court of West Tanjore. He obtained a decree for Rs. 216 against one Manicka Thevar. Manicka Thevar however obtained a decree against the petitioner Srinivasa Ayyangar in the same Court in S.C.S. No. 1101 of 1926 for Rs. 66. The decree-holder in S.C.S. No. 883 of 1926 applied for satisfaction being entered in respect of the amount of Rs. 66 odd due by him under the decree in S.C.S. No. 1101 of 1926. The lower Court refused to grant that request and accordingly the decree-holder in Suit No. 883 of 1926 hud preferred one of the two revision petitions. The decree-holder in S.C.S. No. 1101 of 1926 assigned his rights under the decree to one Venkataramaier. Venkataramaier applied to the Court which passed the decree, namely, the Subordinate Judge's Court of West Tanjore, under Order 21, Rule 16, for recognizing him as assignee decree-holder and for execution of the decree in 1101 of 1926. In spite of the protest raised by the decree-holder in Suit No. 883, the learned Subordinate Judge, recognized the assignment and allowed the assignee to take out execution for the amount due under the decree in 1101 of 1926. Against that order the decree-holder in 883 of 1926, who is the judgment-debtor in 1101 of 1928, has filed the second of the two revision petitions before me.

2. It would appear that the decree-holder in 883 of 1926 applied on a former occasion to execute his decree. That was at a time when the decree-holder in 1101 of 1926 had his decree transferred from the Tanjore Court to the Court of Mannargudi. In these circumstances the decree-holder in 883 of 1926 did not apply for a set off and his execution petition was subsequently dismissed for some reason not affecting the merits and not material for the present. Subsequently the decree-holder in 1101 of 1926 having assigned his decree as observed above, to Venkataramaier, Venkataramaier applied to the said Court of West Tanjore for recognizing his assignment and for executing the decree in S.C.S. No. 1101 of 1926. When that application was pending before the Tanjore Court, the decree-holder in 883 of 1926 applied to the same Court for execution of his decree and for setting off the amount due under the decree in 1101 of 1926 towards the larger amount due under the decree in 883 of 1926. The learned Subordinate Judge, while passing orders in the two connected matters, held that the decree-holder in 883 of 1926 was not entitled to the set off claimed by him, for two reasons: (1) not having applied for the set-off in January 1930 when he first applied for execution he had lost his right; and (2) as the decree in 1101 of 1926 had been assigned to a third person the right to set off, which the decree-holder in 883 of 1926 had, had ceased to exist thereafter.

3. I am of opinion that the decision of the learned Subordinate Judge on both these points is erroneous. From what has been stated above, it is clear that, when the decree-holder in 883 of 1926 applied for execution in January 1930 the decree in 1101 of 1926 was not available for execution in the Subordinate Judge's Court of Tanjore, having been transferred to the Mannargudi Court for execution. It is clear that, unless both the decrees are before the same Court for execution, the right to set off could not be claimed: see Ponnuswamy Nadar v. Doraiswamy Ayyar (1909) 32 Mad 336. That being so, the first reason is not in my opinion sound. Nor do I think that there is anything in the second of the reasons mentioned by him. The learned Subordinate Judge observes that this right to set off could not be available against an assignee of the decree. If we refer to Section 49, Civil P.C., it is seen that 'every transferee of a decree shall hold the same subject to the equities, if any, which the judgment-debtor might have enforced against the original decree-holder.'

4. That this was an equity available to the decree-holder in 883 of 1926 against the decree-holder in 1101 of 1926 is clear, as both were decrees passed by the same Court; and subject to the other conditions, this right of set off would be applicable in respect of the said decrees. Attention may be drawn also to the provisions of Order 21, Rule 18(2), which indicate that the rule laid down by Order 21. Rule 18, shall be deemed to apply even when either party is an assignee of one of the decrees, as well in respect of judgment-debts due by the original assignor as in respect of judgment debts due by the assignee himself. The learned advocate for the counter-petitioner-respondent before me argues that Rule 18(2) could not be availed of by the petitioner in the present case. I think in one sense his contention may be right; but in the face of the provision contained in Section 49, namely, that the transferee-decree-holder shall hold the same subject to the equities which the judgment-debtor might have enforced against the original decree-holder, I am not able to see how the transferee Venkataramaier in this case could claim the higher right that he puts forward before me which his assignor had not. Then the learned advocate argued that the question of notice has to be inquired into and that it is only when it is found that Venkataramaier was an assignee with notice that Section 49 and the equities mentioned therein could be applied as against him. The first answer to this is that no plea of bona fide assignee for value without notice seems to have been put forward in the lower Court, and I am not able to find anything in the order of the lower Court which indicates that such a point was raised before it. Further, the ruling in Monmohan v. Dwaraka Nath (1910) 7 IC 55 is clear that for the purpose of Section 49 the equities have to be enforced even though the assignee might in fact have been an assignee without notice. Otherwise the very object of Section 49 would be in effect frustrated and its provisions rendered nugatory.

5. Finally the decision of the Lahore High Court in Salig Ram v. Ishar Das Dharam Chand A.I.R. 1930 Lah. 508, p. 511, was relied on. As I understand the facts of that case that decision in no way supports the assignee decree-holder's contention urged before the lower Court. In that case at one point of time both the decrees were before the Court at Amritsar for execution, and though an order was passed that it would be open to one of the decree-holders to take advantage of the provisions of set off, the said decree-holder did not in fact try to take advantage of the same, but subsequently had the decree transferred from the Court at Amritsar to the Court at Karachi. It was held in those circumstances that as no advantage was taken of the order declaring a right to set off the execution Court at Amritsar could not be effectively moved to pass orders in this respect after the other decrees were withdrawn from it and transferred to the Karachi Court for execution. I do not understand that judgment to lay down anything which would prevent a right of set off on the facts stated by me in the present case before me.

6. The result is that I allow the revision petitions and direct in respect of the decree in Suit No. 1101 of 1926 that the amount of the same should be set off against the amount of the decree in 883 of 1926 and satisfaction to that extent entered in respect of the decree in 883 of 1926 and that the decree-holder in 883 of 1926 would be entitled to proceed in execution with reference to the balance only. The transferee's application to execute the decree in 1101 of 1926 will stand dismissed and satisfaction entered in respect of the decree in Suit 1101 of 1926. I allow costs in C.R.P. 1774 of 1930, but I do not allow any costs in the connected revision petition as the matter is practically one and the same.


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