PONNUSAMI NADAR AND TEN ORS Vs. LETCHMANAN CHETTIAR

JUDGEMENT

(1.) This appeal raises a question, of some nicety with reference to the construction of Order XXI, Rule 2, corresponding to Section 258 of the old Civil Procedure Code, 1882.

(2.) The first respondent applied for execution of a decree which he alleged had been assigned to his father by the original decree-holders, Objection is made to execution by the second appellant who is one of the judgment-debtors, on the ground that the assignment which is in the name of the first respondent s father was made under an arrangement by which the first respondent s father was to be a mere benamidar for the judgment-debtors. On the date of the assignment the amount due under the decree was Rs. 60,000, and the allegation of the judgment-debtors is that Rs. 15,000 out of this sum was actually paid to the original decree- holders, and that an assignment of the decree was obtained in the name of the first respondent s father on the understanding that he was to hold it for the appellants benefit, the appellants agreeing ho pay the balance of Rs. 45,000 due under the decree.

(3.) The Subordinate Judge has held, by way of demurrer, that accepting the facts as stated by the appellants, he as the Court executing the decree is precluded from giving effect to the arrangement inasmuch as admittedly it was not certified as required by Order XXI, Rule 2. He regards the arrangement as an adjustment or satisfaction of the decree.