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Alluri China Bapanna Garu and ors. Vs. Muthangi Jaggiah Alias Jagga Rao Garu and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai
Decided On
Reported inAIR1943Mad407; (1943)1MLJ271
AppellantAlluri China Bapanna Garu and ors.
RespondentMuthangi Jaggiah Alias Jagga Rao Garu and anr.
Cases ReferredAnavarsada Khan Pani Sahib v. Misiri Khan Pani Sahib
Excerpt:
- - 7. the appeal having failed must be dismissed with costs in favour of the first respondent......by appellants 1 to 5. in o.s. no. 21 of 1931 of the court of the subordinate judge of chittoor a mortgage decree was passed in favour of the assignees of the mortgage. appellants 1 to 5 collected from the mortgagor the sum of rs. 46,000, which they allocated to what was due to them under the mortgage. this led the first respondent to file o.s. no. 17 of 1934 in the court of the subordinate judge of vellore for the recovery of three-fifths of this sum. all the assignees were parties to this suit. the trial court held that the first respondent and the appellants 6 and 7 were entitled together to a 115/192 share of the amount collected and appellants 1 to 5 were entitled to the remainder. appellants 1 to 5 appealed to this court and their appeal was allowed. this court held that the.....
Judgment:

Alfred Henry Lionel Leach, C.J.

1. The first respondent has raised a preliminary objection. He says this appeal does not lie. We consider that this contention must be upheld. At the same time the Subordinate Judge has not followed a provision of law which he was bound to follow. In order to appreciate the situation and the directions which we propose to give in respect of future proceedings it is necessary to set out the facts.

2. On the 9th September, 1913, the first defendant executed a mortgage of immovable property in favour of the Rajah of Bhadrachallam to secure the sum of Rs. 1,16,650. This mortgage was assigned to three groups of creditors of the mortgagee. One group is now represented by the first respondent, the second group by appellants 6 and 7 and the third group by appellants 1 to 5. In O.S. No. 21 of 1931 of the Court of the Subordinate Judge of Chittoor a mortgage decree was passed in favour of the assignees of the mortgage. Appellants 1 to 5 collected from the mortgagor the sum of Rs. 46,000, which they allocated to what was due to them under the mortgage. This led the first respondent to file O.S. No. 17 of 1934 in the Court of the Subordinate Judge of Vellore for the recovery of three-fifths of this sum. All the assignees were parties to this suit. The trial Court held that the first respondent and the appellants 6 and 7 were entitled together to a 115/192 share of the amount collected and appellants 1 to 5 were entitled to the remainder. Appellants 1 to 5 appealed to this Court and their appeal was allowed. This Court held that the defendants were merely co-assignees with the plaintiff of the mortgage and co-assignees were not entitled to give a complete discharge to' a mortgagor on behalf of the other co-assignees. If a co-assignee was found to have realised his own share of the mortgage debt, he could not be said to have been acting in the capacity of an agent or much less, of a constructive trustee and any receipt by him could not be considered to be a receipt on behalf of the others. Consequently the assignees who had collected Rs. 46,000 were not liable to account, the amount being less than what was due to them as their share of the mortgage.

3. A receiver was appointed in the mortgage suit and he collected the sum of Rs. 4,930-12-4, which he paid into Court. Subsequently the first respondent applied to the Court under the provisions of Order 21, Rule 15, of the Civil Procedure Code for an order allowing him to execute the decree on behalf of himself and other decree-holders. This order was granted, but the Subordinate Judge did not follow the provisions contained in Sub-rule (2) of Rule 15. The sub-rule says that where the Court sees sufficient cause for allowing the decree to be executed by one decree-holder on behalf of himself and others on an application made under the rule, it shall make such order as it deems necessary for protecting the interests of the persons who have not joined in the application. The Subordinate Judge passed an order under Sub-rule (1) unconditionally. Thereupon the first respondent applied to the Court for payment out to him of the Rs. 4,930-12-4. The order asked for was passed and the appeal is against that order.

4. The Court has been given to understand that since the passing of this order, a large portion of the decretal amount has been realised by the sale of the mortgaged properties and the proceeds have been deposited in Court.

5. In support of his contention that Section 47 of the Civil Procedure Code does not apply here the learned advocate for the first respondent has relied on the decision of this Court in Anavarsada Khan Pani Sahib v. Misiri Khan Pani Sahib : (1916)31MLJ44 where it was held that Section 47 has no application where the dispute relates solely to the rights inter se of the judgment-debtors. and the decree-holder has no interest in their decision. In this case the dispute is between co-decree-holders. The same principle must apply. The learned advocate for the appellant says that the decision of this Court in Mangayya v. Sriramulu : (1913)24MLJ477 . should be preferred. It was there held that the expression 'between parties to suit' in Section 47, though it no doubt imports ' between parties opposed to each other,' does not necessarily mean between the parties who are plaintiff and defendant respectively in the suit. This decision cannot be followed. The question now under discussion was settled by the Full Bench of this Court which decided Annamalai v. Ramaswami : AIR1941Mad161 . The effect of the Full Bench decision was to confirm the opinion expressed in Anavarsada Khan Pani Sahib v. Misiri Khan Pani Sahib : (1916)31MLJ44 In order for Section 47 to apply, the contest must be between the opposing parties in the suit or their representatives in interest. In the present case the dispute is merely between co-decree-holders in which the judgment-debtor has no concern. Therefore Section 47 does not apply.

6. Our judgment, however, will not preclude the appellants applying to the Subordinate Judge to pass a further order, which complies with Order 21, Rule 15 (2); and it is especially necessary that there should be such an order in view of the fact that there is now lying in Court a very large sum.

7. The appeal having failed must be dismissed with costs in favour of the first respondent.


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