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Sadagopa Aiyengar Vs. Sellammal and ors. - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported inAIR1922Mad510; 72Ind.Cas.861
AppellantSadagopa Aiyengar
RespondentSellammal and ors.
Cases Referred and Mohamad Rowther v. Pichai Rowther
Excerpt:
civil procedure code (act v of 1908), order xxi, rules 2, 16 - execution of decree--transfer of decree to one of several judgment-debtors, effect of--adjustment. - - 6. it is next argued that the subordinate judge was by reason of order xxi, rule 2 not entitled to find that the decree was satisfied by sowri iyengar's purchase......it does not seem to signify whether the assignee decree-holder is one against whom a personal money-decree was passed or one who has been directed to pay the decree amount out of the proceeds of the property in his hands.6. it is next argued that the subordinate judge was by reason of order xxi, rule 2 not entitled to find that the decree was satisfied by sowri iyengar's purchase. this argument is met in the decisions in bayyana ramayya v. nidamarthi krishnamurthi 32 ind. cas. 952 : (1916) 1 m.w.n. 133 and mohamad rowther v. pichai rowther 35 ind. cas. 624 : where it was pointed out that the transferee must first prove his right before he can be allowed to execute the decree, and it is then only that any question of adjustment will arise.7. the lower courts had jurisdiction to.....
Judgment:

1. The Subordinate Judge has in effect found that the execution petitioner is a benamidar for Sowri Iyengar who with the money of 1st defendant purchased the decree.

2. This finding is sufficient to bring the case within the scope of the 2nd proviso to Rule 16 of Order XXI, Civil Procedure Code.

3. The decree was one for the payment of money against first defendant and three others.

4. The fact that first defendant was directed by the decree to pay the amount out of his family properties does not make the decree any the less a decree for payment of the money against him.

5. The observation of Chandavarkar, J. in Panachand v. Sundrabai 9 Bom. L.R. 409, that 'A decree for money against several persons' means a personal decree for the payment of money by two or more defendants jointly, in our opinion, puts an unduly narrow interpretation on this provision. The spirit of the rule is that one judgment-debtor should not by acquiring the interest of a decreeholder be allowed to put, himself into a position in which he can force the other judgment-debtors to, pay the whole of the decree amount, when his proper remedy is a suit for contribution; and for this purpose it does not seem to signify whether the assignee decree-holder is one against whom a personal money-decree was passed or one who has been directed to pay the decree amount out of the proceeds of the property in his hands.

6. It is next argued that the Subordinate Judge was by reason of Order XXI, Rule 2 not entitled to find that the decree was satisfied by Sowri Iyengar's purchase. This argument is met in the decisions in Bayyana Ramayya v. Nidamarthi Krishnamurthi 32 Ind. Cas. 952 : (1916) 1 M.W.N. 133 and Mohamad Rowther v. Pichai Rowther 35 Ind. Cas. 624 : where it was pointed out that the transferee must first prove his right before he can be allowed to execute the decree, and it is then only that any question of adjustment will arise.

7. The lower Courts had jurisdiction to decide as they have done and the civil revision petition is dismissed.


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