PAYRE CHAND Vs. ASHRAFUNNISSA BEGUM

JUDGEMENT

(1.) This appeal by the appellant, an assignee-decree-holder is directed against the order of the Court of the Chief Judge, City Civil Court Hyderabad in E. A. No. 28 of 1970 directing him to make restitution to the .judgment-debtors under Section 144, C. P. C., of a sum of Rs. 2,4,82-82 with interest at 6% thereon from 19-6-1965 till payment.

(2.) The facts leading, to this appeal may briefly be stated : One Shujyatun-nissa Begum, wife of Late Shahjabada Mir Mohammad Ali Khan obtained a decree for a sum of Rs. 1,26,000 towards Mehar from Matruka share in the estate of her late husband Mir Sadatullah Khan and seven others on 31/07/1961 in O. S. No. 144 of 1958 on the file of the Court of the 1st Addl. Judge, City Civil Court, Hyderabad. Defendants 4 to 6 preferred an appeal C. C. C. A. No. 75 of 1962 against the decree passed against them to the extent of the Jagir property. Pending the disposal of the appeal, the original decree-holder filed E. P. No. 24 of 1963 and recovered in the execution proceedings a sum of Rs. 2,472-82 by way of cheque on 19/06/1965 from the commutation amount relating to the share of late Mir Mohammad Ali Khan and due and payable to the defendants-shareholders. The defendants, but for the execution of the decree, would have been entitled to the aforesaid sum of Rs. 2,472-82 withdrawn by the original decree-holder. Thereafter, i.e., on 15/11/1965, the original decree-holder assigned the entire decree to the appellant for a cash consideration of Rs. 10,000 and executed a document on stamp papers worth Rs. 300 where-under all the rights and interest of the assignor were to be held thereafter by the assignee with absolute rights and the assignor transferred to the assignee all the benefits and advantages of the said decree. The transferee decree-holder would be entitled to claim the said decretal amount. The appellant paid the consideration of Rs. 10,000 to the original decree-holder and obtained a receipt therefor. Subsequent to the assignment, the name of the appellant was substituted in the E. P. on 22/08/1966. On 13/07/1967 the regular appeal preferred by the defendants 4 to 6 to this Court was allowed setting aside the decree and judgment of the trial Court and remanding the suit for fresh disposal in accordance with law. The. suit was posted for trial to 5/09/1967 and an application to implead the appellant herein as party-plaintiff was also filed. But, however, before the application for impleading the appellant as party plaintiff was taken up, the suit was dismissed for default on 4/02/1968 as none appeared for the plaintiff. The dismissal of the suit has been allowed to become final. E. A. No. 191 of 1968 in E. P. No. 24 of 1963 filed by the defendants 4 .and b, the judgment-debtors, against the plaintiff and the assignee decree-holder for restitution in respect of a sum of Rupees 2,472-82 with interest at 6% was dismissed on 5-1-1970. Thereafter the present E. A. No. 28 of 1970 to review the earlier order dated 5-1-1970 was filed by the judgment-debtors 4 and 5. The lower Court allowed the review petition and ordered restitution as prayed for on 20-10-1970 against the assignee decree-holder only. Hence this appeal.

(3.) Mr. R. Prasad, the learned counsel for the appellant, contends that the court below erred in ordering restitution in the present case as the amount sought to be recovered was not received by his client as the original decree-holder herself had withdrawn that amount on 19-6-65 itself, i.e., about 5 months prior to the assignment in his favour. According to the counsel, the provisions of Section 144, C.P.C. can be attracted only when the benefit has accrued to or has been taken by a party, be it a decree-holder, a judgment-debtor or any one claiming title or interest under them, but not any other person or persons.