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Sevugan Chetty Vs. Obla Munusawmy Iyer and ors. - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported in7Ind.Cas.66
AppellantSevugan Chetty
RespondentObla Munusawmy Iyer and ors.
Cases ReferredIn Chail Behari Lal v. Rahmal Das
Excerpt:
civil procedure code (act xiv of 1882), section 109 - party entitled to notice--opposite party, meaning of--person attaching ex parte decree, whether entitled to notice. - .....that an attaching creditor of a decree is not entitled to be made a party to an appeal against the decree attached by him, and we think that the principle of that decision is applicable to this case. there is still, however, the question to be decided whether the proceedings which led to the setting aside of the decree attached by the respondents in appeal were not collusive and fraudulent, instituted with the object of defeating the rights of the respondents and on this point we have no finding of either court. we, therefore, direct the district judge to return a finding on this question. he is to allow the parties to adduce fresh evidence if they chose to do so.2. the finding should be submitted in eight week's and ten days will be allowed for filing objections.3. in compliance with.....
Judgment:

1. We are not prepared to accept the view taken by the District Judge that the 'opposite party' in 109 of the Civil Procedure Code of 1882 includes a person who has attached the ex parte decree in question. The plain meaning of the section seems to be that only the party on record is entitled to the notice mentioned in that section. It is well established that an attaching creditor even of a money-decree is not an assignee of the decree nor has he a charge upon it. Ho is entitled, no doubt, to apply for execution of the decree so attached for the satisfaction of his own decree and for that purpose he may well be deemed to be representative of the decree-holder within the meaning of 244 of the Civil Procedure Code of 1882 as held in Krishnan v. Venkatapaihi Chetty 29 M. 318. But that does not show that he has an interest in the decree within the meaning of 372 of the Civil Procedure Code of 1882. In Chail Behari Lal v. Rahmal Das 20 A. 38, it was decided that an attaching creditor of a decree is not entitled to be made a party to an appeal against the decree attached by him, and we think that the principle of that decision is applicable to this case. There is still, however, the question to be decided whether the proceedings which led to the setting aside of the decree attached by the respondents in appeal were not collusive and fraudulent, instituted with the object of defeating the rights of the respondents and on this point we have no finding of either Court. We, therefore, direct the District Judge to return a finding on this question. He is to allow the parties to adduce fresh evidence if they chose to do so.

2. The finding should be submitted in eight week's and ten days will be allowed for filing objections.

3. In compliance with the above order, the District Judge of Madura submitted his finding against any collusion and fraud, and the appeal coming on for final hearing the Court delivered the following

4. We accept the finding and reversing the order of the District Judge we restore that of the District Munsif with costs in this and in the lower appellate Court.


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