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Sreekakulam Vencatasubbiah Vs. Lavaaru Dade Sahib - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtChennai
Decided On
Judge
Reported in2Ind.Cas.433
AppellantSreekakulam Vencatasubbiah
RespondentLavaaru Dade Sahib
Cases ReferredBaldeo Prasad v. Ibn Haidar
Excerpt:
mortgage decree - execution--step-in-aid of execution--assignment of mortgage--application by assignee plaintiff to be brought on record--no prior application for order absolute--transfer of property act (iv of 1882), section 89--civil procedure code (act xiv of 1882), section 248--application in accordance with law. - .....cannot be regarded as having been made in accordance with law. the applications of 1901 and 1904 asked for sale of the property, but did not expressly ask for an order under section 89 of the transfer of property act. probably they might properly to regarded as applications impliedly asking for such an' order, as was done in baldeo prasad v. ibn haidar 27 a.k 625 but it is not necessary to do that in this case. they all asked for recognition of the applicant as transferee of the decree and for notice to the judgment-debtor under section 248 of the code of civil procedure then in force, and so according to the decisions were applications to take a step-in-aid of execution even if they had not asked for sale, and inasmuch as the recognition of the transfer was necessary before an order.....
Judgment:

1. It is not denied that according to a recent decision of this Court the application of the 30th May 1907 is an application to take a step-in-aid of the execution of the decree, nor is it denied that, standing by itself, it is in accordance with law; but it is contended that because it was not preceded by an application for an order under Section 89, Transfer of Property Act, it cannot be regarded as having been made in accordance with law. The applications of 1901 and 1904 asked for sale of the property, but did not expressly ask for an order under Section 89 of the Transfer of Property Act. Probably they might properly to regarded as applications impliedly asking for such an' order, as was done in Baldeo Prasad v. Ibn Haidar 27 A.k 625 but it is not necessary to do that in this case. They all asked for recognition of the applicant as transferee of the decree and for notice to the judgment-debtor under Section 248 of the Code of Civil Procedure then in force, and so according to the decisions were applications to take a step-in-aid of execution even if they had not asked for sale, and inasmuch as the recognition of the transfer was necessary before an order under Section 89 could be made, there is no reason, to hold that they were not in accordance with law by reason that that application had not previously been made. The appeals are allowed and the decrees of the Courts below reversed the Court of first instance will restore the applications to its file and dispose of them according to law. Costs will abide the event.


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