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Peer Mahomd Rowthen and anr. Vs. Raruthan Ambalam Through His Authorised Agent, Jagannatha Iyengar - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Judge
Reported in30Ind.Cas.831
AppellantPeer Mahomd Rowthen and anr.
RespondentRaruthan Ambalam Through His Authorised Agent, Jagannatha Iyengar
Cases ReferredBasroorvittil Bhandari v. Ramachandra
Excerpt:
execution - assignment of rights prior to decree--assignee, whether, can execute decree. - .....considered that the claim of the 5th plaintiff was barred by limitation and consequently did not pass any decree in his favour, therefore, the 5th plaintiff was not entitled to execute the decree as it stood at the time of the application. the subordinate judge, to whom the application for execution was made considered that the 5th plaintiff must be regarded as the assignee of the decree, but the assignment to the 5th plaintiff was not of the decree but of rights prior to decree: and at pointed in basroorvittil bhandari v. ramachandra 17 m.l.j. 392 such an assignment will not give the 5th plaintiff any right to execute the decree subsequently obtained: the fact that in basroorvittil bhandari v. ramachandra 17 m.l.j. 392 the assignee did not apply to be made a party prior to decree can.....
Judgment:

1. The view taken by the Subordinate Judge cannot be supported. The Subordinate Judge who heard the suit considered that the claim of the 5th plaintiff was barred by limitation and consequently did not pass any decree in his favour, therefore, the 5th plaintiff was not entitled to execute the decree as it stood at the time of the application. The Subordinate Judge, to whom the application for execution was made considered that the 5th plaintiff must be regarded as the assignee of the decree, but the assignment to the 5th plaintiff was not of the decree but of rights prior to decree: and at pointed in Basroorvittil Bhandari v. Ramachandra 17 M.L.J. 392 such an assignment will not give the 5th plaintiff any right to execute the decree Subsequently obtained: the fact that in Basroorvittil Bhandari v. Ramachandra 17 M.L.J. 392 the assignee did not apply to be made a party prior to decree can make no difference in the application of the principle enunciated in that decision. We must reverse the order of the Subordinate Judge and dismiss the application, without prejudice to his right to apply again under the decree as amended by us. The appellant is entitled to his costs in this and in the lower Court.


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