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V. Thiruvengadam Pillai by Agent V. Lachmiah Vs. Doridla Subbiah and anr. and B. Vencata Subbiah and ors. - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported in13Ind.Cas.659
AppellantV. Thiruvengadam Pillai by Agent V. Lachmiah
RespondentDoridla Subbiah and anr. and B. Vencata Subbiah and ors.
Excerpt:
civil procedure code (act v of 1908), section 2(10), order xxi, rules 53, 16 - judgment-debtor, whether includes his assignee--decree-holder, rights of assignee of--assignee of the holder of attached decree, rights of, to execute decree. - .....and notice was given to the cuddapah district court under rule 53 of order xxi of the code of civil procedure. the appellant, on the 1st march 1909, applied to the cuddapah district court for execution of the decree in question on the strength of the assignment and the respondent also applied to the said court for execution of the said decree. the district court has dismissed the appellant's application, and allowed the application of the respondents in appeal no. 51 of 1910.2. the district judge of cuddapah has dismissed the appellant's application on the ground that the assignment was not bona fide and was intended to defeat the rights of the respondent who has attached the decree. but we may at once point out that this finding is not supported by any evidence. the assignment in.....
Judgment:

1. The appellant in Appeals Nos. 50 and 51 of 1910 is the assignee of a decree which one Abdul Aziz had obtained against one Subbiah in the District Court of Cuddapah. The assignment is dated 16th March 1906 and notice of it was given to hubbiah on the 20th March 1906. The 1st and 2nd respondents in Appeal No. 51 of 1910 had a decree against Abdul Aziz which was passed by the District Munsif's Court to Nandalur. On the application of the respondents, attachment was ordered on 20th June 1906 by the District Muusif of Nandalur of Abdul Aziz's decree against Subbiah and notice was given to the Cuddapah District Court under Rule 53 of Order XXI of the Code of Civil Procedure. The appellant, on the 1st March 1909, applied to the Cuddapah District Court for execution of the decree in question on the strength of the assignment and the respondent also applied to the said Court for execution of the said decree. The District Court has dismissed the appellant's application, and allowed the application of the respondents in Appeal No. 51 of 1910.

2. The District Judge of Cuddapah has dismissed the appellant's application on the ground that the assignment was not bona fide and was intended to defeat the rights of the respondent who has attached the decree. But we may at once point out that this finding is not supported by any evidence. The assignment in favour of the appellant was made before the decree was attached and there is nothing to show that the appellant knew that there was a decree outstanding against his transferor in favour of the respondent. The assignment purports to be for consideration and there is no evidence showing the contrary. We, therefore, cannot accept the finding of the District Court that the assignment was a colourable or fraudulent transaction.

3. At the same time, it seems to us that, having regard to the provisions of Rule 53 of Order XXI of the Code of Civil Procedure, the appellant's application was rightly dismissed Under that rule, the District Court of Cuddapab, when it received notice of the attachment from the Nandalur District Munsif's Court, was bound to stay execution of its decree until the Nandalur Court cancelled the notice on the respondent or the holder of the attached decree. Abdul Aziz applied for the execution. The notice has not been cancelled and, therefore, the only two persons mentioned in Rule 53 of Order XXI of the Code of Civil Procedure, who can take out execution, are the holder of the attached decree, or the respondent, the attaching creditor. The application of the respondent was, therefore, clearly rightly allowed by the lower Court. On the other hand, Rule 53 of Order XXI of the Code of Civil Procedure does not mention the assignee of the holder of the attached decree and Rule 16 of Order XXI of the Civil Procedure Code tends to show that the Legislature did not intend to treat the assignee of the decree-holder as standing exactly in the same position as the decree-holder himself for purposes of execution. Rule 16 of Order XXI of the Civil Procedure Code seems to contemplate that an assignee of the decree-holder may not, in such cases, he entitled to take out execution as a matter of right, although the decree-holder himself will be so entitled. We may also point out that the definition of judgment-debtor, as given in Section 2, Clause 10 of the Code of Civil Procedure, does not include the assignee of the judgment-debtor. We, therefore, confirm the order of the District Judge and dismiss the appeals, with costs in Appeal No. 51 of 1910.


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