JAMMULA VENKAYYA Vs. KASIREDDI NARASIMHA MURTHY

JUDGEMENT

(1.) This Letters Patent Appeal is against the judgment dated 1st February, 1968 of our learned brother, Vaidya, J., in Second Appeal No. 601 of 1965. It is unnecessary to narrate in detail the facts of the case as the only point that arises for consideration and which is urged before us is, that a preliminary decree for accounts passed in a suit for dissolution of partnership and accounts, is not transferable by reason of the provisions of section 6 (e) of the Transfer of Property Act (hereinafter called the Act). The first defendant who was unsuccessful in all the Courts below, is the appellant herein. The second defendant filed a suit O.S. No. 310 of 1957 on the file of the District Munsiff's Court, Kowur, against the third defendant for dissolution of partnership and settlement of accounts and obtained a preliminary decree. The said decree was transferred by the 2nd defendant to the plaintiff under a deed dated 4th March, 1960. The plaintiff filed an application to implead himself as a party to the said suit and it was ordered on 17th January, 1961.

(2.) One Seth Ratanchand Ravalmal obtained a decree against the 2nd defendant in O.S. No. 291 of 1955 on the file of the District Munsiffs Court, Kowur and the first defendant obtained a transfer of the said decree under a deed dated 16th April, 1960 and the transfer of the decree was recognised on 30th July, 1960. Thereafter the first defendant filed E.P. No. 815 of 1960 for attachment of the preliminary decree in O.S.No.310 of 1957. The plaintiff who had obtained transfer of the preliminary decree in O.S. No. 310 of 1957 preferred a claim in E.A. No. 1365 of 1960 and the claim petition was dismissed. Thereafter the suit out of which the present appeal arises was filed by the first respondent the appellant herein for setting aside the summary order passed on the claim petition and for raising the attachment of the preliminary decree in O.S. No.310 of 1957.

(3.) The three points that arose for consideration in the Courts below, were:- (1) Whether the transfer of the preliminary decree in O.S. No. 310 of 1967 in favour of the plaintiff by the 2nd defendant, was nominal and collusive ? (2) Whether the transfer of the said decree is valid in law ? and (3) If valid, whether it is subject to the attachment of the decree made by the first defendant ? The trial Court and the lower appellate Court held that the transfer deed in favour of the plaintiff was not nominal and that it was fully supported by consideration. It was held that the transfer of the preliminary decree in O.S. No. 310 of 1957 was not subject to the attachment made by the first defendant in execution of the decree in O.S. No. 291 of 1955. On the second point it was held that the transfer of the decree was valid and not hit by the provisions of section 6 (e) of the Act.