KRISKNASWAMI NAICKER Vs. VASUDEVAN AND OTHERS

JUDGEMENT

(1.) This revision is directed against the order passed in E.P. 192 of 1984 in O.S. 229 of 1981 on the file of the Principal District Munsif, Sathur. The facts leading to the filing of the present revision petition are as follows:-- One Messrs. Uma Paper Mart, the second respondent herein filed a suit in O.S. 151 of 1979 on the file of the Sub Court, Ramanathapuram, against the revision petitioner and respondents 3 to 5 herein as partners of the third respondent firm for recovery of a sum of Rs. 7,778.64, due from the said firm and the said suit, after transfer to the District Munsif, Sattur in O.S. 229 of 1981 was decreed on 28th June, 1983. Originally, the decree holder filed E.P. 224 of 1983 against the fourth respondent for sale of his properties. During the pendency of the said petition, the decree was assigned in favour of one Vasudevan, who is the first respondent herein. Thereafter, that execution petition was not pressed and the present execution petition in E.P. 192 of 1984 was filed for recognition of the said assignment and arrest of the revision petitioner. The petitioner resisted the application on the ground that the other partners, finding that they cannot escape liability, had persuaded the decree-holder to assign the decree in favour of the first respondent who is their cousin and nominee so that the decree-holder would not proceed against them but only against the petitioner herein. It is claimed that the consideration for the assignment was paid only by them and not by the said assignee and that the assignment is a benami transaction for the benefit of the other judgment-debtors. It was further contended that execution ought to have been levied only against the firm at the first instance and not against a single partner. The assignment was also challenged on the ground that all the partners of the decree holder firm have not joined in the assignment, and, therefore, the assignment is invalid. After considering the objections raised by the petitioner herein, the learned District Munsif held that the said assignment is valid and ordered arrest. Aggrieved against the said order, the petitioners have filed the above revision petition.

(2.) Mr. R. Alagar, learned counsel appearing for the petitioner, submits that the assignment in favour of the first respondent herein is only benami for the benefit of the other judgment-debtors brought about to defeat the rights of the revision petitioner who is one of the judgment-debtors, it is submitted that as per the provisions contained in the proviso to R. 16 of O. 21, C.P.C., 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. I do not find any force in the said arguments, since there is no scope to introduce the theory of benami in the case of a transfer of a decree where it has been established that the first respondent has paid the amount and got the assignment from the decree-holder.

(3.) Learned counsel for the petitioner raised serious objection to the assignment of the decree on the ground that the decree is in favour of the firm Uma Paper Mart, and, therefore, the said decree cannot be assigned in favour of the first respondent, for the amount lesser than the actual amount due under the decree. According to him, the claim in E.P. 224 of 1983 was Rs. 9,826.78 whereas the decree was assigned only for a sum of Rs. 8,000 by one S.P. Ramanathan, one of the partners of the decree-holder firm. He contends that this amounts to settlement or compromise of the decree in favour of the firm and one of the partners cannot or enter into such an arrangement as he has no authority to do so under law. He relies on the provision contained in S. 19(2) (c) of the Indian Partnership Act which reads as follows: