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Bolla Brahmadu Alias Bapanna Vs. Ruddaraju Venkataraju and ors. - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported in33Ind.Cas.71
AppellantBolla Brahmadu Alias Bapanna
RespondentRuddaraju Venkataraju and ors.
Cases Referred and Ganapathy Ayyar v. Chenga Reddi
Excerpt:
civil procedure code (act v of 1908), section 47, order xxi, rules 2 and 16 - execution--application by transferee-decree-holder, order on, if appealable--uncertified payment, whether can be recognized. - .....who obtained transfer of the decree (the transfer-deed being dated 4th february 1910) from the decree-holder, to execute the decree on an application made by the 1st respondent under order xxi, rule 16, of the code of civil procedure. a preliminary objection is taken by mr. narasimha rao for the 1st respondent that as the execution application was dismissed seven days after the passing of the order appealed against on the ground that default was made by his client, the transferee-decree-holder, in taking further steps (that is, filing of the drafts of sale proclamation, etc., as directed by the order appealed against), the appellant has no cause of action to support an appeal against the order of the 19th november 1913, recognising the 1st respondent as transferee-decree-holder and.....
Judgment:

Sadasiva Aiyar, J.

1. The 6th defendant (judgment-debtor) is the appellant. This appeal has arisen out of an order passed by the Subordinate Judge allowing the 1st respondent who obtained transfer of the decree (the transfer-deed being dated 4th February 1910) from the decree-holder, to execute the decree on an application made by the 1st respondent under Order XXI, Rule 16, of the Code of Civil Procedure. A preliminary objection is taken by Mr. Narasimha Rao for the 1st respondent that as the execution application was dismissed seven days after the passing of the order appealed against on the ground that default was made by his client, the transferee-decree-holder, in taking further steps (that is, filing of the drafts of sale proclamation, etc., as directed by the order appealed against), the appellant has no cause of action to support an appeal against the order of the 19th November 1913, recognising the 1st respondent as transferee-decree-holder and allowing him to take the usual steps for executing the decree.

2. Mr. Narasimha Rao relies in support of his contention on the decisions of this Court, which have held that a transferee of a decree has no right to apply merely to be recognized as a decree-holder, but he ought to apply for execution of the decree itself. I am unable to see the relevancy of those decisions. The order dated 19th November 1913 now appealed against was passed on at proper application for execution of the decree by the transferee, and not on an application to merely recognise the 1st respondent as transferee decree-holder. The order not only recognised him as transferee-decree-holder, but also contained an order in his favour asking him to take steps to prosecute the execution petition as such decree-holder. The dismissal, of the execution petition one week afterwards for default does not in any way weaken the effect of that order so far as it is in his favour, and as that order is an order passed in a matter relating to the satisfaction and execution of the decree, it was clearly an appealable order under Section 47 of the Code of Civil Procedure. So long as it is in force, the questions decided by it will be res judicata against the judgment-debtors in favour of the 1st respondent in subsequent execution petitions. The dismissal for default of an execution petition after an order passed on it in the decree-holder's favour does not stand on the same footing as the dismissal of a suit for default after findings on certain preliminary issues have been given in plaintiff's favour. I would, therefore, overrule the preliminary-objection.

3. Coming to the merits, Mr. B. Somayya for Mr. Narayanamurthy for the appellant wished to argue several points not taken in the memorandum of appeal. We did not allow him to do so, as they depended on allegations of fact not supported by an affidavit or by anything in the printed record. Among the points taken in the appeal memorandum itself, that one which was alone argued before us is stated in several ways in grounds two to five in the appeal memorandum. The point is best stated in ground (4) which is as follows: 'Payment out of Court though not certified to the Court is a material element to be considered by the Court in exercising its discretion in favour of or against the petitioner when he seeks to come on record as the transferee-decree-holder.'

4. The above contention was argued (and has, therefore, to be considered) as arising under two sets of circumstances:

1. When the uncertified payment is alleged to have been made to the original decree-holder before the transfer to the applicant.

2. When the said payment is alleged to have been made to the transferee applicant himself before he put in his application to execute the decree as such transferee.

5. Let us first take the case where the payment is alleged to have been made to the original decree-holder.

6. There are, no doubt, observations in the cases of Agra Bank v. Cripps 8 M.s 455 and in Man Mohan Karmakar v. Dwarka Nath Karmokar 7 Ind. Cas. 55 to the effect that a subsequent transferee for value is bound by uncertified payments made to the transferor before the date of the transfer and that he must be deemed to have purchased nothing if the decree amount had been fully paid up before the date of transfer. These observations have, however, been not accepted by us in our judgment in Bayyana Ramayya v. Nidamarthi Krishnamurthi 32 Ind. Cas. 952 and I adhere to the opinion expressed therein.

7. Let us now take the second case where the alleged payments were made to the transferor after the transfer. Sir S. Subramania Aiyar, J., sitting singly in Rama Ayyan v. Sreenivasa Pattar 19 M.s 230 held that an enquiry should be held as to the alleged bad faith of a transferee who had, before the date of his transfer, bound himself as the agent or trustee of the judgment-debtor to take steps to have the decree satisfied and that if such bad faith is proved, the Court need not recognise the transfer arid need not direct execution in favour of the transferee. I am not prepared to extend the doctrine laid down in that case (assuming that case to have been rightly decided) to cases where the transferee for value is not proved to have entered into any such fiduciary relationship with the judgment-debtor before the date of the transfer. I think the general principle enunciated in Alathoor Badrudeen v. Gulam Moideen 12 Ind. Cas. 562 must be applied in its broad features to cases of alleged payments put of Court, with very few departures in exceptional circumstances. The lower Court was, therefore, right in refusing to make an enquiry into the alleged payments which could not be recognised in execution, as no application had been made to the Court within the prescribed limitation period to compel the decree-holder or his transferee to certify the satisfaction.

8. I would dismiss the appeal with costs.

Moore, J.

9. I agree with my learned brother that there is no substance in the preliminary objection taken by the 1st respondent's Counsel. The transferee plaintiff applied on 17th January 1913 to be recognised as transferee. In execution of the decree, a transferee cannot apply merely for recognising him as transferee but should also apply for execution of the decree: Ramachandra Aiyar v. Subramania Chettiar 14 M.L.J. 393. The transfer was recognised on 19th November 1913 and draft sale-proclamation and affidavit were ordered to be filed within a week. This not having been done, the execution petition was dismissed on 26th November 1913. The order dated 19th November 1913 was clearly an appealable order. The fact that the execution petition was dismissed a week later is, I think, irrelevant.

10. Coming now to the merits of the appeal the appellant's (6th defendant's) case apparently was that defendants Nos. 1, 3 and 14 arranged with the transferee-plaintiff that the latter should discharge the decree-amount and that on 12th February 1911 (subsequent to the transfer of the decree) they sold 27 odd acres out of the mortgaged properties to the transferee-plaintiff, and that the decree had been satisfied by the payment of Rs. 13,000 to the original decree-holder. First defendant in his evidence stated that he had discharged the decree-debt out of the sale amount. The payment was admittedly not certified to the Court. It is unnecessary, I think, for the purposes of this appeal, to consider whether Rama Ayyan v. Sreenivasa Pattar 5 M.L.J. 218 was rightly decided. I prefer to base my decision on the ground that the appellant is not entitled to rely on an uncertified adjustment or payment as a bar to the execution of the decree. Order XXI, Rule 2, of the Code of Civil Procedure is imperative that the execution Court cannot recognise any adjustment which has not been certified. See in Alathoor Badrudeen v. Gulam Moideen 12 Ind. Cas. 562 : (1911) 2 M.W.N. 473 and Ganapathy Ayyar v. Chenga Reddi 16 M.J. 33. I think that the Subordinate Judge was right in refusing to enquire into the alleged uncertified payment or adjustment.

11. In the result, the appeal is dismissed with costs.


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