PALANIYAPPA CHETTIAR Vs. CHOCKALINGAM CHETTIAR

JUDGEMENT

(1.) The plaintiff s suit has been dismissed on the ground that, according to Section 23 of the Contract Act, the agreement on which the suit is based as contained in Exhibit A is illegal and that therefore the plaintiff cannot recover the money which the defendant had collected under certain decrees. The plaintiff himself is the judgment-debtor under the decree and he apparently asked the defendant to take an assignment of the decree on his behalf and to execute the decree against the other judgment-debtors and the defendant realized in execution certain assets. By Exhibit A it is provided that the defendant will submit accounts to the plaintiff of the amount spent in collecting the money, and of the amount realized, and after deducting a commission of 20 per cent pay over the balance to the plaintiff.

(2.) Order XXI, Rule 16, Civil Procedure Code, says that: Where a decree for the payment of money against two or more persons has been transferred to one of them it shall not be executed against the others.

(3.) It is not contended that on such transfer, the liability under the decree becomes altogether discharged but that the decree shall not be enforced in execution; it is open to the judgment debtor who has obtained a transfer of the decree to sue his, co-debtor upon it for contribution, as held in Anant Vinayak v. Nagappa Subraya (1908) I.L.R., 32 Bom., 195. In this case the judgment-debtors did not raise any objection to execution on the strength of Order XXI, Rule 16. The defendant must be taken to be an agent of the plaintiff for the actual realization of the money. But it is argued on behalf of the respondent that it was the duty of the Court to refuse execution and the Court would have done so if it had been brought to its notice that the defendant was merely an agent or benamidar of the plaintiff, who was one of the judgment-debtors. Having regard to the language of Order XXI, Rule 16, we may proceed on the assumption that if the facts were known to the executing Court, it would have been bound to reject the application for execution.