Venkataramana Rao, J.
1. In this civil miscellaneous appeal two points were urged by Mr. Rajah Aiyar on behalf of the appellant (1) that the application by the first respondent as transferee-decree-holder is incompetent on the ground that there was no decree in favour of the alleged assignors which could be transferred and (2) that the transfer is not binding on the appellant on the ground that it has not been proved to be for a valid necessity.
2. In regard to the first contention there can be no doubt that the assignors of the first respondent were entitled to recover mesne profits in pursuance of the appellate decree in O.S. No. 72 of 1910 on the file of the Sub-Court, Bapatla. It is not disputed by Mr. Rajah Aiyar that they were competent to apply for recovery of mesne profits by way of restitution under Section 144, Civil Procedure Code. If they were competent to do so, we do not see any reason why their assignee is incompetent to do so. The right to recover mesne profits which the assignors were entitled to under the said decree is assignable. We are inclined to treat the application presented by the first respondent as an application for restitution after recognising the transfer in his favour. Whether Order 20, Rule 16 is strictly applicable or not, it would be open to the Court to recognise the transfer under Section 146, Civil Procedure Code, and allow the transferee to apply for restitution. If we are inclined to take this view, Mr. Rajah Aiyar has not been able to adduce anything against it. We therefore overrule the contention of Mr. Rajah Aiyar in this behalf.
3. In regard to the question of consideration there was a finding in the partition suit O.S. No. 63 of 1932 that it was binding on the members of the family including the appellant. The transfer was found to be for a valid necessity. There was no appeal against that decree in respect thereof and the matter has become final. The appellant was impleaded in the execution proceedings only as legal representative of his father and so far as his father is concerned the transfer was binding on him. His right to impeach the binding nature of the transaction, as already stated, having become final, it is not open to him to reopen it in this appeal. In the result the appeal fails and is dismissed with costs.