Skip to content


Dharani Mudali Vs. Meenamba Bai Ammani - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported in17Ind.Cas.617
AppellantDharani Mudali
RespondentMeenamba Bai Ammani
Cases ReferredIn Ramachandra Aiyar v. Subramanya Chettiar
Excerpt:
civil procedure code (act v of 1908), section 146, order xxi, rule 16 - assignment of decree--limitation--execution of decree--petition by transferee decree-holder to enter up satisfaction. - 1. we shall deal with each of the objections to the application put in by the transferee decree-holder separately. the first point raised is that the assignee's right to execute the decree is res judicata by the orders, exhibits g, h, ia and iia. we are of opinion that what was decided in every one of these orders was no more than that so long as an attachment on the decree sought to be executed subsisted, the assignee could not execute the decree. it is conceded that there was no subsisting attachment on the date of the present application except the attachment by nilakanta iyer. we are of opinion that nilakanta iyer's attachment had also ceased to subsist. he put in a petition to the court abandoning the attachment. any application, therefore, to execute the decree would not be barred.....
Judgment:

1. We shall deal with each of the objections to the application put in by the transferee decree-holder separately. The first point raised is that the assignee's right to execute the decree is res judicata by the orders, Exhibits G, H, Ia and IIa. We are of opinion that what was decided in every one of these orders was no more than that so long as an attachment on the decree sought to be executed subsisted, the assignee could not execute the decree. It is conceded that there was no subsisting attachment on the date of the present application except the attachment by Nilakanta Iyer. We are of opinion that Nilakanta Iyer's attachment had also ceased to subsist. He put in a petition to the Court abandoning the attachment. Any application, therefore, to execute the decree would not be barred by the rule of res judicata.

2. The most important objection argued is that the present application by the assignee is not maintainable because it does not come within the purview of Order XXI, Rule 16, which lays down that an assignee of a decree in writing may apply for execution and the Court may allow execution under the same rules and subject to the same conditions as a decree-holder may execute. The application in the present case by the assignee states that the amount due under the decree had been discharged by the sale by the judgment-debtors to the assignee of the mortgaged property (the decree being one on a mortgage) and asks the Court that satisfaction may be entered in respect of the whole decree, or of a portion in case it should be found that there is any valid objection to complete satisfaction being entered. The contention is that there is no provision in any section or rule contained in the Civil Procedure Code entitling the assignee to put in such an application. There is no reason why Section 146 of the Civil Procedure Code should not be applicable to a petition put in by the assignee of a decree. A decree-holder may, undoubtedly, apply for according satisfaction of the decree without putting in an application for execution. It stands to reason that his representative, the assignee, should also be entitled to do so. There is no necessity according to the Code for the assignee getting any previous order recognizing his assignment or his right to execute the decree before actually applying for execution or putting in a petition for recording satisfaction. We should certainly be prepared to hold, even apart from Section 146, that an assignee of a decree would be entitled to maintain an application of the kind in question in the absence of any provision preventing him from doing so.

3. In Ramachandra Aiyar v. Subramanya Chettiar 14 M.L.J. 393 which has been referred to on behalf of the appellant, Bhashyam Iyengar, J., says that the only application that a decree-holder can put in, is for execution of the decree under Section 232, Civil Procedure Code. The question in that case was whether an assignee of a decree could put in an application merely for getting his assignment recognised. The observation of the learned Judge was that no petition for such a purpose alone is provided for in the Code. A proceeding of that sort is quite superfluous as an assignee could apply for execution without such preliminary step. The learned Judge cannot be understood to have stated that there is no application that an assignee could put in except for execution. Any other application open to a decree-holder is equally open to his assignee. This contention must, therefore, be disallowed.

4. The next contention is that the execution of the decree is barred by limitation. This argument is based solely on the ground that the assignment to the petitioner was in January 1906, more than three years before his present application which was in February 1910. The argument is entirely unsupportable. The date of the assignment has nothing to do with the question of limitation applicable to the execution of a decree. The various starting points determining the question of limitation are laid down in Article 182 of the Schedule to the Limitation Act. Apart from this, the present application is not one for execution. It is open to a decree-holder to certify satisfaction of the decree at anytime.

5. It is then contended that the finding of the Subordinate Judge that the consideration for the assignment has been fully satisfied by the petitioner is not correct. We consider it unnecessary to go into this question inasmuch as even if some portion of the consideration has not been paid, that would not make the assignment itself incomplete, or prevent the assignee from receiving payment from the judgment-debtor of the amount due under the decree.

6. It is perhaps necessary to refer to a further contention that the Subordinate Judge disallowed evidence to be gone into relating to two matters, viz., (1) that the petitioner was only a benamidar for one Scindia, and (2) that there was a condition precedent agreed upon between the parties before the assignment could come into operation. Neither of these questions was definitely raised in the objection statement of the appellant in answer to the petitioner's application. The Subordinate Judge was not wrong in disallowing evidence to be given on those questions. We dismiss the appeal with costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //