THOMAS SAMUEL Vs. PAPPU RAMACHANDRAN

JUDGEMENT

(1.) The decree holder in O.S. No. 29 of 1974 on the file of the Sub Court, Pathanamthitta, is the appellant. He obtained a decree on 18-12-1974 against the judgment debtor for Rs 5, 848/- interest and costs. Even before judgment, he had applied for and obtained an order of attachment of certain amounts due to the judgment debtor from the Divisional Forest Office, Ranni, being the amounts due to the judgment debtor in respect of the security deposit and all amounts due on account of a contract work executed by him in the Pampini Coupe. After obtaining the decree he applied by E.P. No. 64 of 1975 for realisation of the decree amount from out of the amounts attached. It is at this stage that a petition E A. No. 61 of 1976 was filed by a third party claimant to release the attachment on the ground that by virtue of an agreement between the judgment debtor and the claimant, the contract on the basis of which amounts are due to the judgment debtor from the Divisional Forest Office, Ranni, was itself assigned to him, that he had provided for the security deposit made, the contract work had been executed by him, and that there was an irrevocable power of attorney executed by the judgment debtor in his favour authorising him to execute the contract and realise all amounts due from the Divisional Forest Office for the work done. The Divisional Forest Officer also filed E. A. No. 97 of 1976 to vacate the attachment in respect of the amounts due to the judgment debtor on the ground that the amounts due to the judgment debtor can be settled only after all accounts between him and the State are also settled. It is further stated that the work has been completed by the claimant and part payment also has been made to him. The claimant alleges that since the judgment debtor found it impossible to carry out the work he approached the claimant who advanced the deposit amount of Rs. 7,000/- and undertook to carry on the work at his expense and risk and did in fact execute and complete the work. An irrevocable power of attorney which has been marked as Ext. X1 dated 12 8 1971 was executed by the judgment debtor in his favour. The claimant alleges collusion between the decree holder and the judgment debtor and according to him, the suit and the attachment are all only a method adopted to realise the money due for the work done and the deposit advanced by the claimant on behalf of the judgment debtor. The decree holder had filed a counter alleging collusion between the claimant and the judgment debtor. Both the courts below found that there was an assignment of the contract which is marked as Ext. X9 dated 28 1 1971 between the judgment debtor and the Forest Department. Ext. X1 irrevocable power of attorney executed by the judgment debtor in favour of the claimant authorises him to realise all amounts due from the Department This amounts to an equitable assignment of all amounts due on completion of the contract and hence the decree holder is not entitled to realise the decree from out of the amounts due from the Divisional Forest Office, Ranni. The claim was accordingly allowed by the executing court and confirmed in appeal A S. No.111 of 1978 of the District Court, Quilon. It is against this that the decree holder has filed the above second appeal.

(2.) The plea of collusion raised by the decree holder against the claimant and the judgment debtor was apparently not pressed before the courts below, as no such question is seen considered in the judgment of the executing court or of the appellate court. The claimant also does not appear to have pressed the plea of collusion between the decree holder and the judgment debtor that he had raised in his claim petition. No evidence is adduced by either party in respect of the plea of collusion raised by them. No arguments were also advanced before me by either side in support of the plea of collusion.

(3.) Ext XI is the irrevocable power of attorney executed by the judgment debtor on 12 8 1971 in favour of the claimant. power of attorney was registered by the notary for Quilon District. Ext. X1 ,is in the following terms: