P SITHARAMIAH Vs. GUBBA ATCHIAH

JUDGEMENT

(1.) . This is an appeal preferred under the Letters Patent against the Judgment of our learned brother Srinivasachari J., in S.A. No. 778 of 1956. affirming the judgment of the lower appellate Court and raises the question as to the right of an assignee of the decree-holder, whose assignment has not been recognised by the executing Court as against the right of an attaching creditor of the decreeholder-assignor. The facts involving this question are these : The appellant herein is the assignee of the decree-holder the second respondent in this appeal. The second respondent, Mohamed Ismail will hereinafter be referred to as the decree-holder. A decree was passed in his favour in O.S. No. 95 of 1951 on the file of the Sub-Court Tenali, for Rs. 2,600 realizable with interest thereon and a charge was created against certain immoveable properties for the realisation of the said amount. The decree-holder then transferred the decree by an assignment deed dated 27th August, 1952, Exhibit A-2, in favour of the present appellant. After the assignment, the appellant (who will be referred to as the assignee) did not apply to the Court for recognition of the assignment, and execution of the decree under the provisions of Order 21, rule 16, Civil Procedure Code.

(2.) While so, the first respondent (herein referred to as the attaching creditor) obtained a money decree against the decree-holder, in S.C. No. 355 of 1952 on the file of the District Munsif's Court, Tenali, and attached the decree in O.S. No. 95 of 1951 in favour of the decree-holder on nth October, 1952. He then executed the decree. The charged property was sold in execution and purchased by the third respondent (who will be referred to as the auction-purchaser). Before the sale of the charged property in O.S. No. 95 of 1951, the assignee preferred a claim in E.A, No. 225 of 1954. That claim was dismissed, whereupon he preferred a claim suit, O.S. No. 20: of 1954 in the Court of the District Munsif Tenali, to set aside the adverse order passed on the claim petition. It would appear that it was conceded that the assignment was true and supported by consideration.

(3.) The District Munsif Tenali, who tried the claim suit, O.S. No. 201 of 1954 found that unless the assignee applied to the Court for recognition and execution of the decree under the provisions of Order 21, rule 16, he would have no right to question the attachment and sale of the property and, in that view, dismissed the suit.