KUNJAN PILLAI Vs. OUSEPH

JUDGEMENT

(1.) THE first defendant in O. S. 272 of 1120 on the file of the Munsiff's Court, Vaikom, is the appellant in this Second Appeal. He had obtained a decree for money against the plaintiff in O. S. 56/1104 of the same court under which he had to get Rs. 450/ -. He borrowed Rs. 250/- and executed a bond for repayment thereof in favour of the 2nd defendant, hypothecating the said decree as security. Ext. A dated 5. 6. 1111 is the bond. On 28. 4. 1117 the 2nd defendant assigned his interests under Ext. A in favour of the plaintiff by executing a deed of transfer, Ext. B. THE plaintiff brought the suit as such transferee, seeking recovery of the amount due under Ext. A personally from the 1st defendant as also by sale of the hypotheca. THE total amount claimed in the suit inclusive of principal and interest is Rs. 375/ -.

(2.) VARIOUS contentions were raised by the 1st defendant which were all repelled by both the Courts below. The only point that is raised in the Second Appeal is as regards the maintainability of the suit.

(3.) MR. Krishnamoorthi Iyer, learned counsel for the plaintiff respondent relied upon two decisions:-Rappai v. Raman Nair (XXXII cochin LIZ 290) and Subramania Pattar v. Viswanatha Pattar (XXXV Cochin LIZ 414 ). The one in XXXV Cochin does not appear to have any application to the present case. XXXII Cochin 290 was a decision under the second Proviso to the 14th Rule of the 21st Order of the Cochin Code of Civil Procedure, XXIX/1111, which provides as follows: "o. 21, R. 14. Where a decree or, if a decree has been passed jointly in favour of two or more persons, the interest of any decree holder in the decree is transferred by assignment in writing or by operation of law, the transferee may apply for execution of the decree to the Court which passed it; and the decree may be executed in the same manner and subject to the same conditions as if the application were made by such decree holder: Provided that where the decree, or such interest as aforesaid, has been transferred by assignment, notice of such application shall be given to the transferor and the judgment-debtor and the decree shall not be executed until the Court has heard their objections (if any) to its execution: Provided also that, where a decree for the payment of money against two or more persons has been transferred to one of them, it shall not be executed against the others", and the question that arose there was whether the legal representatives of a deceased judgment-debtor would be a "judgment-debtor" within the meaning of the said 2nd proviso. O. 21, r. 14, Proviso 2 is also bottomed on the principle of extinction occasioned by the co-existence of opposite qualities of debtor and creditor in the same person. The principle of extinction is accepted in XXXII Cochin 290 and in the various cases of the Courts in India which are referred to therein. The two learned judges who heard the case first could not agree. The learned Chief Justice was of the opinion that the proviso prohibited execution only in case of a total extinction occasioned by a complete transfer of the entire rights under the decree which was not the case there. The other learned judge took the view that the prohibition applies to partial extinctions as well occasioned by the coincidence of the two characters even to a fractional extent. There was agreement between the two learned judges upon the point that there would be an extinction whether partial or total according to the quantum of the coincidence. Their difference was merely upon the extent of the application of the prohibition contained in the proviso to R. 14, 0. 21 of the cochin CPC. The third learned judge before whom the matter was placed on account of such a difference of opinion also accepted the principle of extinction as aforesaid after a discussion of the various authorities cited before him, but was of the opinion that that principle had no application to the facts of that case, as in his view, though the person who sought execution of the decree was a legal representative of the judgment-debtor, he was not himself a judgment-debtor within the meaning of the prohibition which did not, therefore, stand in the way of his executing the decree. The decision in XXXII cochin thus is in support of the view that we have taken in this case.