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Mono Mohan Vs. Kali Kinkar Chakravarty - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported inAIR1935Cal751,159Ind.Cas.696
AppellantMono Mohan
RespondentKali Kinkar Chakravarty
Cases ReferredKhetra Mohan Das v. Biswanath Bera
Excerpt:
civil procedure code (act v of 1908), section 60 - right to take accounts, whether assignable--claim for money on rendition of accounts established in preliminary decree, whether assignable and attachable under section 60--transfer of property act (iv of 1882), section 6(e). - .....to the judgment-debtor, as mentioned in his petition of objection filed in court, it was a mere right to sue. the objection as raised by the judgment-debtor was overruled by the court of execution; and hence this appeal.2. the question for decision in the case before us is whether a preliminary decree in a suit for accounts is liable to attachment, regard being had to the provisions contained in section 60, civil p. c, regarding the liability of property to attachment and sale in execution of decree. if it was a mere right to sue,, as was contended for the judgment, debtor, there could be no question that the preliminary decree for accounts, could not be attached under the law. as it was observed by their lordships of the judicial committee of the privy council in syed tufluzzal.....
Judgment:

1. This is an appeal by the judgment-debtor arising out of an application for execution of a decree passed on 21st September 1932. The decree-holder prayed for attachment of a decree obtained by the judgment-debtor on 15th June 1932, against one Naba Chandra Choudhury in Account Suit No. I89 of 1928, in the second Court of the Subordinate Judge, Chittagong. Objection was raised under Section 47, Civil P. C, stating that a preliminary decree for accounts could not be attached, as such a decree was not assignable under the law, according to the judgment-debtor, as mentioned in his petition of objection filed in Court, it was a mere right to sue. The objection as raised by the judgment-debtor was overruled by the Court of execution; and hence this appeal.

2. The question for decision in the case before us is whether a preliminary decree in a suit for accounts is liable to attachment, regard being had to the provisions contained in Section 60, Civil P. C, regarding the liability of property to attachment and sale in execution of decree. If it was a mere right to sue,, as was contended for the judgment, debtor, there could be no question that the preliminary decree for accounts, could not be attached under the law. As it was observed by their Lordships of the Judicial Committee of the Privy Council in Syed Tufluzzal Hossain Khan v. Rughoonath Pershad (1870-72) 14M IA 40, a mere right of suit is not property, but a title to recover future property; and the observations were made in the case before the Judicial Committee in which there was a claim under a future award, as to which it was wholly uncertain until the award was made what the debtor will be entitled. The uncertainty at the time of attachment was not limited to a mere question of quantum, it was wholly uncertain what the arbitration might terminate. In the case before us, there was a preliminary decree for accounts in favour of the judgment-debtor, now confirmed by this Court on appeal; and we have it on the judgment-debtor's own statement of his case before the Court of execution, that it was expected that the amount due to him would be over Rs. 80,000 There was no question about the judgment-debtor succeeding in right to get an ascertained sum on accounts being taken under the decree obtained by him. In the case of a decree directing an inquiry as to mesne profits, it has been held by this Court, that a sale of the decree was valid under the law, as the right sold was not a mere right to sue within the meaning of Section 6(e), T.P. Act: see Prasanna Kumar v. Asutosh Roy, 1914 Cal 60.

3. A right to sue is not saleable property, and cannot be transferred; but in the case before us, the claim for money on rendition of accounts has been established in favour of the judgment-debtor, and the claim has now been merged in a decree by a competent Court. The right under the decree is assignable although the cause of action so far as the judgment-debtor's right to get money on accounts being taken was concerned, was not. A right to take accounts, and to recover such sums, as may be found due, is not assignable, being a right to sue within the meaning of Section 6(e), T.P. Act: see Khetra Mohan Das v. Biswanath Bera, 1924 Cal 1047. The decree sought to be attached being saleable property belonging to the judgment-debtor over which or the profits he has a disposing power which he may exercise for his own benefit, was liable to be attached under Section 60, Civil P.C.

4. In the above view of the case before us, the decision of the Court below, and the orders passed by it on 7th August and 2nd November 1933, must be affirmed; and we direct accordingly. The appeal is dismissed with costs; the hearing fee in this Court be assessed at three gold mohurs.


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