PANIHARAM SITHARAMAIAH Vs. GUBBA ARCHIAH AND OTHERS

JUDGEMENT

(1.) This is an appeal preferred under the Letters Patent against the Judgment of our learned brother Srinivasachari, J. in S.A. 778 of 1556, 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 decree-holder-assignor.

(2.) 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 Mohd. Ismail will hereinafter be referred to as the decree-holder. A decree was passed in his favour in O.S.95/51 on the file of the sub court, Tenali for Rs. 2600/- realizaple with interest thereon, and a charge was created against certain immovable properties for the realisation of the said amount. The decree-holder then transferred the decree by an assignment deed D/-27-8-52, Ex. 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 C.P.C.

(3.) While so, the first respondent (herein referred to as the attaching creditor) obtained a money decree against the decree-holder in SC 355 of 1952 on the file of the district Munsiff's Court, Tenali and attached the decree in O.S.95 of 1951 in favour of the Decree-holder on 11-10-52. 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).