PALLADUGULA SURYANARAYANA Vs. SAMAYAMANTHULA NAGESWARA RAO

JUDGEMENT

(1.) THE question of the appeal is whether the appellant possesses a right of set -off by virtue of Section 49 of the Code of Civil Procedure. The section says that a transferee of a decree shall hold it subject to the equities which the judgment -debtor might have enforced against the original decree -holder.

(2.) IN O. S No. 556 of 1920 on the file of the Court of the District Munsiff of Razole, the plaintiff, one Mylavarapu Venkataratnam, obtained a money decree against the appellant. In execution of it the decree -holder attached certain immovable purchased the properties. Thereupon the appellant applied to the Court under Order 21, Rule 90 for an order setting aside the sale. His application was dismissed; but on appeal the sale was set aside. This was on the 30th January, 1930. The 15th September, 1933. It was then manifest that the appellant was entitled to be placed in possession of the properties with mesne profits from the date on which he had been dispossessed by the decree -holder. The decree -holder died and on the 4th February, 1934, his legal representatives transferred the decree to the respondent. On the 9th January, 1936, the appellant filed a petition asking for restitution of the decree for mesne profits. On the 11th September, 1937, the Court ordered the properties to be delivered to him and on the 25th March, 1938, it passed a decree for mesne profits, the amount being fixed at Rs. 721 -6 -0.

(3.) THE same question arose in Daw Aye V. Maung, A.I.R. 1937 Rang. 316, which was decided by a Division Bench of the Rangoon High Court of which I was a member. It was held that notice was immaterial and that a right of set -off existed. The Court accepted as correctly stating the law in the following passage from the judgment of Mookerjee, J., in Monmohan Karmokar v. Dwarkanath Karmokar 1: