ANTHAYA HEGADE Vs. MANJAIYA SHETTY

JUDGEMENT

(1.) The question for our decision in tins Second Appeal is whether the payment of the two instalments of the plaint bond made by the defendants to Rukmini Shettithi and Mahabala Hogade on 18 March 1914 and 17 February 1915, respectively, are valid against the plaintiff. The learned Subordinate Judge has found them to be not valid and has disallowed the plea of partial discharge based on them.

(2.) The bond sued, on is a simple money bond payable by instalments and was executed by the defendants in the name of one Sinnappa Chetty. Now it has been found that Sinnappa Chetty was merely a name lender or benamidar for one Nagappa Hegade to whom the debt was really due. One Sankayya got a decree against in Original Suit No. 496 of 1909 and attached the: plaint debt in execution of his decree in 1913. Before that, the bond had been assigned by Sinnappa to Rukmini and Mahabala who are the persons to whom the payments in question here were made by the defendants and who are the children of Nagappa. On the attachment being effected they preferred a claim under Order XXI, Rule 58 of the Civil Procedure Code to the whole debt. Their claim was allowed and the attachment was withdrawn on 17 February 1914. Sankayya, the defeated decree creditor, then brought a suit against Nagappa, his judgment-debtor, and against Sinnappa Chetty and his assignees, Rukmini and Mahabala, and against the present defendants, the debtors under the bond, for a declaration that Sinnappa waa a benamidar for Nagappa and so were his assignees and that he was entitled to attach the debt in execution of his decree. This suit was filed in April 1914. The suit was decreed in Sankayya's favour and the Appeal and Second Appeal against him failed and the debt due under the bond was sold in Court auction in 1918; whether there was a fresh attachment or not does not appear. The plaintiff purchased the debt in that auction and now sues for the whole amount duo as it stood on the date of the original attachment.

(3.) It will be observed that the payments pleaded by the defendants wore made the first one just after the original attachment was raised and before Sankayya's declaratory suit was filed, and the second when that suit was pending; both were made after the instalments fell duo under the bond but after the date of the original attachment. Prima facie plaintiff is not entitled to recover more than what was due under the bond on the date of his purchase. But it is urged that these two payments do not amount to a valid discharge against him on two grounds.