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(Kenath Puthan Veetial) Siva Sankara Menon Vs. (Chalakattal Natuvile) Purakkal Kuppan and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported inAIR1928Mad878
Appellant(Kenath Puthan Veetial) Siva Sankara Menon
Respondent(Chalakattal Natuvile) Purakkal Kuppan and ors.
Cases Referred and Lakshmi Ammal v. Kathiresam Chettiar A.I.R.
Excerpt:
- .....granted a melcharth, against a prior kanomdar and against sub-mortgagees from that kanomdar. the jenmi was a party to that suit. pending the decision in o.s. no. 53 of 1919, the jenmi assigned the decree in o.s. no. 84 of 1919. the preliminary decree in o.s. no. 84 of 1919 was passed on 13th february 1919 and the final decree in january 1921. the assignment was made subsequent to the preliminary decree and before the final decree. the district munsif allowed the execution application and the district judge dismissed it on the ground that it was not competent to the assignee to execute the decree in o.s. no. 53 of 1919. that decree directed payment of the money, which the appellant now wants to attach, to defendants 21 and 23. we think that the decision of the district judge is right......
Judgment:

Kumaraswami Sastri, J.

1. This appeal arises out of an application by the assignee of the decree in O.S. No. 84 of 1919 on the file of the Additional District Munsif's Court of Palghat which was passed in a land suit by a jenmi against the kanomdar. The assignee prayed to attach the money standing to the credit of O.S. No. 53 of 1919 on the file of the Court of the Principal District Munsif of Palghat which was filed by the malcharth-holder to whom the same jenmi had granted a melcharth, against a prior kanomdar and against sub-mortgagees from that kanomdar. The jenmi was a party to that suit. Pending the decision in O.S. No. 53 of 1919, the jenmi assigned the decree in O.S. No. 84 of 1919. The preliminary decree in O.S. No. 84 of 1919 was passed on 13th February 1919 and the final decree in January 1921. The assignment was made subsequent to the preliminary decree and before the final decree. The District Munsif allowed the execution application and the District Judge dismissed it on the ground that it was not competent to the assignee to execute the decree in O.S. No. 53 of 1919. That decree directed payment of the money, which the appellant now wants to attach, to defendants 21 and 23. We think that the decision of the District Judge is right. The assignment of the decree in O.S. No. 84 of 1919 being during the pendency of O.S. No. 53 of 1919, to which the assignor was a party, we think that that was subject to the decree that may be passed in O.S. No. 53 of 1919. It was open to the assignor who was a party to O.S. No. 53 'of 1919 to have pleaded that defendants 21 and 22 could not get any portion of the moneys. He did not do so. The decree as it stands directs payment of the amount to defendants 21 and 22. What the appellant does is, he seeks to attach this amount which under the decree is payable to defendants 21 and 22 and files execution application in O.S. No. 53 of 1919 for the purpose. It is admitted that if the application was made by the jenmi who was a party to that suit it would be incompetent for him to execute the decree which was for payment of the money to defendants 21 and 22. It seems that the assignee of the decree 'pending that suit would not be in a better position than the assignor who was a party to that decree.

2. The next contention raised is that there was a claim filed by defendant 21 which was dismissed and that, therefore, the order has become final and that defendant 21 lost all his rights in the decree. It is true that defendant 21 filed a claim petition, but there was no adjudication as the claim was withdrawn owing to the Court 'having no jurisdiction to entertain it. The case falls within the decisions in Abdul Kadir Sahib v. Somasundaram Chettiar A.I.R. 1923 Mad. 76 and Lakshmi Ammal v. Kathiresam Chettiar A.I.R. 1921 Mad. 488 and an unreported case of this Court in Second Appeal No. 897 of 1824: : AIR1927Mad893 . This is a case where the party by mistake came to Court, which could not dispose of the claim, and when he found it out, withdrew it and the Court allowed him to do so and dismissed the application. There was no question to be decided, nor was there any adjudication. It cannot be said that the parties invited the Court's decision on the footing of an existing attachment and then raised the question of any want of. jurisdiction owing to the absence of an attachment. The appeal fails and is dismissed with costs.


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