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Ayyaru Pillai Vs. Varadaraja Pillai and anr. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtChennai
Decided On
Judge
Reported inAIR1926Mad431; 92Ind.Cas.770; (1926)50MLJ116
AppellantAyyaru Pillai
RespondentVaradaraja Pillai and anr.
Cases ReferredKrishnayyar v. Venkayyar
Excerpt:
limitation act (ix of 1908), schedule i, article 182 (5) - step-in-aid of execution--assignee decree-holder--recognition of assignment, application for. - .....of mr. ram-a--swami iyer for the petitioner is that it was not competent for the assignee decree-holder to make the application he did to the court executing the decree the decree was passed on 12th april 1915 by the subordinate judge's court, tanjore. it was, transferred for execution to the district munsif's court of tanjore by an application, dated 18th july 1916. the assignee decree-holder applied to the district munsif's court on 10th february 1920 for the issue of notice to the defendant under order xxi, rule 22, and asked 'that the records may be transferred along with a certificate to the subordinate judge's court, tanjore fer the purpose of further conducting the suit.' in it he also stated that the decree had-been transferred to him by assignment. the question is,.....
Judgment:

Devadoss, J.

1. This is a petition to revise the order of the Subordinate Judge of Tanjore recognising the assignment of the decree in favour of the petitioner in the lower Court. The contention of Mr. Ram-a--swami Iyer for the petitioner is that it was not competent for the assignee decree-holder to make the application he did to the Court executing the decree The decree was passed on 12th April 1915 by the Subordinate Judge's Court, Tanjore. It was, transferred for execution to the District Munsif's Court of Tanjore by an application, dated 18th July 1916. The assignee decree-holder applied to the District Munsif's Court on 10th February 1920 for the issue of notice to the defendant under Order XXI, Rule 22, and asked 'that the records may be transferred along with a certificate to the Subordinate Judge's Court, Tanjore fer the purpose of further conducting the suit.' In it he also stated that the decree had-been transferred to him by assignment. The question is, whether this is an application which it is competent for the assignee decree-holder to make. If ha was compel tent to make the application it would be step-in-aid of execution under Article 182(5) of the Limitation Act. It is well-settled that an assignee decree-holder can apply only to the Court which passed the decree for being recognised as the assignee of the decree and it is also settled that he cannot make an application only for the purpose of being recognised as an assignee decree-holder. His application must be one for execution and, therefore, if he does not apply for execution, his application would not be considered to be a proper application. In this case, he asked that the records be sent to the other Court for the further conduct of what he calls a suit and I suppose he meant by it for the execution of the decree. It has been held in Krishnayyar v. Venkayyar 6 M. 81 : 2 Ind. Dec. 334 that if a decree-holder applies to the Executing Court to send the records to the Court which passed the decree, that application is a step-in-aid of execution and saves limitation. Whether a transferee decree-holder can make a similar application is the question. In order that his claim as assignee decree-holder may be recognised, it is necessary that the paper should be sent back to the Court which passed the decree. It is admitted that the assignee decree-holder was subsequently recognised to have got a proper assignment of the decree by the Subordinate Judge's Court, Tanjore which passed the decree. In order to get that relief, his application to the Executing Court to send back the papers to that Court is a competent one. I think, in order to enable the Court which passed the decree to recognise him as the assignee decree-holder, it was necessary for that Court to have the records sent up by the Executing Court and an application for that purpose, I think, comes within the expression of 'stop-in-aid of execution'. In this case, the application was not by the assignee decree-holder for execution to the Executing Court which no doubt he was incompetent to make till his assignment was recognised. But in order that the Court which passed the decree may pass an order under Order XXI, Rule 16, it was necessary though it might not be so in every case, at least in this case, that the papers should have been sent back. I hold, therefore, that this application was a proper one which the assignee, decree-holder was competent to make in this connection. I would like to refer to the case reported as Manorath Das v Ambica Kanta Bose 1 Ind. Cas. 57 . In that case an application which was made by a person who got a title to a decree by operation of law and who made an application before the Court which passed the decree recognised him as being entitled to execute the decree, was a proper application. In this view of the case I think the order of the lower Court is correct and this petition is dismissed with costs.


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