M R SRINIVASA AYYANGAR Vs. VENKATARAMA AYYAR

JUDGEMENT

(1.) These are two revision petitions filed by the decree-holder (Srinivasa Ayyangar) in S.G.S. No. 883 of 1926 on the file of the Subordinate Judge's Court of West Tanjore. He obtained a decree for Rs. 216 against one Manicka Thevar. Manicka Thevar however obtained a decree against the petitioner Srinivasa Ayyangar in the same Court in S.C.S. No. 1101 of 1926 for Rs. 66. The decree- holder in S.C.S. No. 883 of 1926 applied for satisfaction being entered in respect of the amount of Rs. 66 odd due by him under the decree in S.C.S. No. 1101 of 1926. The lower Court refused to grant that request and accordingly the decree- holder in Suit No. 883 of 1926 hud preferred one of the two revision petitions. The decree-holder in S.C.S. No. 1101 of 1926 assigned his rights under the decree to one Venkataramaier. Venkataramaier applied to the Court which passed the decree, namely, the Subordinate Judge's Court of West Tanjore, under Order 21, Rule 16, for recognizing him as assignee decree-holder and for execution of the decree in 1101 of 1926. In spite of the protest raised by the decree-holder in Suit No. 883, the learned Subordinate Judge, recognized the assignment and allowed the assignee to take out execution for the amount due under the decree in 1101 of 1926. Against that order the decree-holder in 883 of 1926, who is the judgment- debtor in 1101 of 1928, has filed the second of the two revision petitions before me.

(2.) It would appear that the decree-holder in 883 of 1926 applied on a former occasion to execute his decree. That was at a time when the decree-holder in 1101 of 1926 had his decree transferred from the Tanjore Court to the Court of Mannargudi. In these circumstances the decree-holder in 883 of 1926 did not apply for a set off and his execution petition was subsequently dismissed for some reason not affecting the merits and not material for the present. Subsequently the decree-holder in 1101 of 1926 having assigned his decree as observed above, to Venkataramaier, Venkataramaier applied to the said Court of West Tanjore for recognizing his assignment and for executing the decree in S.C.S. No. 1101 of 1926. When that application was pending before the Tanjore Court, the decree- holder in 883 of 1926 applied to the same Court for execution of his decree and for setting off the amount due under the decree in 1101 of 1926 towards the larger amount due under the decree in 883 of 1926. The learned Subordinate Judge, while passing orders in the two connected matters, held that the decree- holder in 883 of 1926 was not entitled to the set off claimed by him, for two reasons: (1) not having applied for the set-off in January 1930 when he first applied for execution he had lost his right; and (2) as the decree in 1101 of 1926 had been assigned to a third person the right to set off, which the decree-holder in 883 of 1926 had, had ceased to exist thereafter.

(3.) I am of opinion that the decision of the learned Subordinate Judge on both these points is erroneous. From what has been stated above, it is clear that, when the decree-holder in 883 of 1926 applied for execution in January 1930 the decree in 1101 of 1926 was not available for execution in the Subordinate Judge's Court of Tanjore, having been transferred to the Mannargudi Court for execution. It is clear that, unless both the decrees are before the same Court for execution, the right to set off could not be claimed: see Ponnuswamy Nadar V/s. Doraiswamy Ayyar (1909) 32 Mad 336. That being so, the first reason is not in my opinion sound. Nor do I think that there is anything in the second of the reasons mentioned by him. The learned Subordinate Judge observes that this right to set off could not be available against an assignee of the decree. If we refer to Section 49, Civil P.C., it is seen that "every transferee of a decree shall hold the same subject to the equities, if any, which the judgment-debtor might have enforced against the original decree-holder."