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Rampalli Ramachandrudu Vs. Karri Krishna Reddi - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported in115Ind.Cas.829
AppellantRampalli Ramachandrudu
RespondentKarri Krishna Reddi
Cases ReferredFollowing Arumugam Pillay v. Alagappa Chettiar
Excerpt:
civil procedure code, (act v of 1908), order xxxiv, rule 14 - mortgage decree-holder giving up charge--execution as money decree--order xxxiv, rule 14, whether applicable--assignee of mortgage decree--consideration for assignment, if can be questioned by judgment-debtor. - .....pay a certain amount and that it shall be charged on the mortgaged properties. whether there is a sale decree as the first subordinate judge has thought or a decree creating a fresh charge it is unnecessary to decide: the objections taken to the application of the respondent are: 1. that the assignment is not genuine, not for consideration and made with a view to evade the appellant's commission. there is no evidence on the last point. the transfer is provided by a document and it is not for the appellant to raise the question of consideration apart from saying it is a nominal transaction which case has not been suggested.2. the assignment ought to have been made by the receiver of the kovvuri family litigation. there is no substance in this.3. the next objection is that the decree is.....
Judgment:

1. These appeals are against orders recognising the respondent as assignee of the decree in 0.S. No. 27 of 1919 and allowing attachment and sale. That suit was filed on a mortgage and ended in a compromise. No part of the original mortgage was reserved at the time of filing of the suit. The whole original mortgage was merged in the decree. The decree provided that the defendants were to pay a certain amount and that it shall be charged on the mortgaged properties. Whether there is a sale decree as the first Subordinate Judge has thought or a decree creating a fresh charge it is unnecessary to decide: The objections taken to the application of the respondent are:

1. That the assignment is not genuine, not for consideration and made with a view to evade the appellant's commission. There is no evidence on the last point. The transfer is provided by a document and it is not for the appellant to raise the question of consideration apart from saying it is a nominal transaction which case has not been suggested.

2. The assignment ought to have been made by the Receiver of the Kovvuri family litigation. There is no substance in this.

3. The next objection is that the decree is unenforceable because the decree-holder did not get Order S. No. 29 of 1920 withdrawn. That suit against the appellant was allowed to be dismissed and was not prosecuted. There is no failure of consideration under the terms of the compromise.

4. The properties cannot be sold with reference to Order XXXIV, Rule 14 of the Code of Civil Procedure. The respondent gives up the charge under the decree and is executing it as if it is a mere money decree. He applied for attachment and sale. Following Arumugam Pillay v. Alagappa Chettiar : AIR1921Mad477 we hold that Order XXXIV, Rule 14 does not apply. The old mortgage does not exist any more. The rule does not apply to a new charge created by the decree nor is the execution sought to be subject to the charge.

2. All the objections fail. The appeals are dismissed with cost a in Civil Miscellaneous Appeal Nos. 485 of 1925 and 340 of 1926.


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