KUNJAMMA KOSHY Vs. VARUGHESE

JUDGEMENT

(1.) The question which arises for decision is whether a suit by the assignee of a decree for a declaration that he is entitled to execute the decree and realise the amount and also for cancellation of the order of the execution court dismissing his execution petition is barred by S.47 of the Code of Civil Procedure. The Subordinate Judge of Quilon held that it was not barred and the third defendant has come up in revision.

(2.) The plaintiff who claimed to be the assignee of the decree in O.S. No. 187 of 1109 of the Quilon District Court instituted this suit for the reliefs stated above. The 1st defendant in the court below was the decree holder in O.S. No. 187 of 1109 and defendants 2 and 3, the legal representatives of the judgment - debtor in the case. On the strength of a deed of assignment alleged to have been executed by the decree holder, the plaintiff applied for execution but it was found by the execution court that the assignment deed was not genuine. The decision was confirmed in appeal by the High Court in A.S. No. 303 of 1953 on 10-1-1956. On 17-1-1956 the original decree holder filed an application in the execution court to record satisfaction of the decree. Before orders were passed on the same the assignee instituted this suit on 21-2-1956 obtained an order of injunction restraining further proceedings in execution of O.S. No. 187 of 1109. The third defendant in this suit contended inter alia that the suit was barred by S.47 of the Code of Civil Procedure. This question was tried as a preliminary issue and it was held that the suit was maintainable hence this revision petition.

(3.) The order of the court below is based on the decision in Sarah Sukh v. Prem Datt ( AIR 1937 Lah. 465 ). That was a suit by a judgment - debtor against the assignee decree holder who had realised the decree amount from him. The assignees application to execute the decree and the judgment - debtors application to record satisfaction of the same were dismissed by the execution court. Thereupon the judgment - debtor instituted the suit against the assignee to whom he had paid the amount. The original decree holder was also made a party to the suit. The assignee contended that the suit was barred by S.47 of the Code of Civil Procedure on account of the previous decision of the execution court. The question which arose for decision in that case was whether, in the suit by the judgment - debtor, the assignee could raise the plea that his assignment was valid in spite of the finding of the execution court against him. The Trial Court as well as the appellate court held that S.47 was an effective bar to the contention that the assignment was valid. In second appeal, the High Court reversed the decision and held that the dispute between the original decree holder and the assignee which formed the subject matter of the previous decision did not operate as a bar. This decision cannot be relied on in this case for more reasons than one.