MANUEL NADAR Vs. VARUNEL NADAR

JUDGEMENT

(1.) The attaching decree holder is the appellant. The appeal raises the question of the competing claims of the attaching decree holder and the assignee decree holder to execute the decree. The decree in the case was obtained by the foreman of a chitty on the basis of a chitty security bond for the arrears of subscriptions due from a prized subscriber. It is dated 9.5.1121. On 24.5.1121 the decree holder and one Savarimuthu Nadar Devasayaham Nadar filed a joint execution application stating that the decree was assigned to the latter and praying that he may be permitted to execute the decree. For the money due to the appellant as a non prized subscriber in the identical chitty he had obtained Ext. I decree against the foreman. In execution of that decree, the appellant attached the decree in this case. The order of attachment was received in the case on 15.10.1121 and it was given effect to. Savarimuthu Nadar Devasahayam Nadar died and his children as his legal representatives filed an execution application on 24.4.1124 praying that the assignment of the decree in favour of their father may be recognised and they may be permitted to execute the decree. The contended that the attachment is of no consequence as it was effected only after the assignment of the decree. The attaching decree holder to whom notice was given resisted the execution application and pleaded that the assignment in question is voidable under S. 28 of the Chitties Act (Act III of 1094) as it was created fraudulently without consideration for the purpose of defeating and delaying the realisation of the chitty money due to him under Ext. I decree and that he is entitled to execute the decree in pursuance of the attachment and realise the amounts due to him. The execution court upheld the plea of the attaching decree holder and dismissed the execution application of the respondents. In appeal the lower appellate Court reversed that order. The attaching decree holder has therefore come in second appeal.

(2.) The courts below have concurrently found that the assignment relied on by the respondents was without consideration. The joint execution applications that evidences the assignment was filed in Court within 15 days of the date of the decree. Admittedly the decree that was assigned was one of the assets of the chitty and at the time of the assignment money in relation to the self same chitty was due to the appellant under Ext. I decree. S.36 of the Chitties Act provides:-

(3.) It is not necessary for the appellant to have recourse to separate suit to avoid the transfer. He can avoid it by effecting the attachment on the decree as he has done and if the transfer is found to be voidable on the grounds mentioned in S. 28 he is entitled to execute the decree in pursuance of the attachment and recover the amount due to him.