JAMMULA VENKAYYA Vs. KASIREDDI NARASIMHA MURTHI

JUDGEMENT

(1.) This is a second appeal by the 1st defendant. The plaintiff filed a suit for a declaration that the decree in- O.S. No. 310 of 1957 is not attachable in execution of a decree in O.S. No. 291 of 1955. The plaintiff's case is that the 2nd defendant had filed a suit for dissolution of partnership and accounts against defendant No. 3 in which a preliminary decree was passed;that beingO.S. No. 310 of 1957. Afterthe passingof has decree, defendant No. 2 transferred his rights in the preliminary decree to the plaintiff by a deed dated 4th March, 1960. On 15th April, 1960 the plaintiff filed an application to be impleaded as a party which was ordered on 17th January, 1961. There was a decree in O.S. No. 291 of 1955 against defendant No. 2 of which the 1st defendant obtained transfer and had the decree in O.S. No. 310 of 57 attached. The plaintiff filed a claim petition E.A. No. 1365 of 1960 to raise the attachment which was dismissed. Hence the suit.

(2.) In the suit three questions were raised: One was whether the transfer dated 4th March, 1960 by the second defendant in favour of the plaintiff was nominal and collusive; (2) whether the transfer dated 4th March, 1960 by the second defendant to the plaintiff purporting to be the transfer of the prelimiary decree, is not valid in law; and (3) whether the transfer dated 4th March, 1960 is subject to the attachment of the decree made by the 1st defendant. A question was also raised under the provisions of Order 21, rule 16, Civil Procedure Code, but that question is not being pressed rightly before me in view of the decision in Lakkisetti Pakirayya v. Padala Navaneethamma, (1961) 1 An.W.R. 254.

(3.) The question whether the transfer in favour of the plaintiff was nominal is also concluded being a question of fact. It was also not raised before me. The only question raised before me is that the preliminary decree for accounts cannot be transferred or assigned as it is merely a right to sue and such a transfer is prohibited by the provisions of section 6 (e) of the Transfer of Property Act. Reliance for this proposition is placed on Mathu v. Achu, A.I.R. 1934 Mad. 461. There it was held that at the time of the assignment the liquidated amour t had become due to the assignor of the plaintiff. The assignment of a right to recover this debt is more than a mere right to sue for accounts and it does not therefore offend the provisions of section 6 (e) of the Transfer of Property Act. It is argued that in a preliminary decree for accounts, as no amount has been ascertained, it will be only a mere right to sue. The case that their Lordships of the Madras High Court were considering was a case where the payment of the amount was due to defendants 7, 8, 9 to 11 in that case and that amount had been transferred by them by assignment. A question was raised that such assignment was of a mere right to sue and was therefore hit by the provisions of section 6 (e) of the Transfer of Property Act. In that context it was held that the amount due to defendants 7, 8 and 9 to 11 was an ascertained amount as sub-contractors and had become definite and could be found by the process of arithemetical calculation. It was rot laid down in this case that a preliminary decree in a suit for accounts is merely a right to sue ard was therefore not attachable.