KANGATI MAHANANDI REDDI Vs. PANIKALAPATI VENKATAPPA

JUDGEMENT

(1.) The respondent 1 in this appeal was the plaintiff in two suits which came finally to be numbered as O.S. No. 15 and O.S. No. 24 of 1938 on the file of the Subordinate Judge of Kurnool. These were suits mainly, and in O.S. No. 15 wholly, for the recovery of money clue on promissory notes. The claim in O.S. No. 15 was for Rs. 21,788, that in O.S. No. 24 for Rs. 4,698. While these suits were pending respondent 1 on 1 November, 1937 executed a deed of transfer in favour of the present appellant. By this deed he assigned to the appellant the entire amounts due in respect of the two suits for a consideration of Rs. 8,000. The consideration was to be paid within fifteen days of the passing of the decrees in the two suits, but in no case before a date in February 1938. It was also provided that if a decree were not granted in the more important suit (O.S. No. 15) payment of the Rs. 8,000 would not be due, and any payment which might actually have been made should be refunded. On the same day (1 November, 1937) appellant executed in favour of respondent l a promissory note for Rs. 8,000 which was expressed as payable on demand.

(2.) Decrees in the two suits were in due course passed that in O.S. No. 15 on 22 September, and that in O.S. No. 24 on 25 November, 1938. The sum of Rs. 8,000 was not paid by the appellant within the fifteen days stipulated, and has not yet been paid. On 9 March, 1939 respondent 1 sent a lawyer's notice to the appellant repudiating the transfer on the ground of the non-payment of the consideration within the stipulated time. In April, 1939 appellant applied under Order 21, Rule 16 and Section 146, Civil Procedure Code to execute the decree in O.S. No. 15. The judgment-debtor (respondent 2) remained ex-parte but respondent 1 opposed his application. The learned District Judge of Kurnool held that appellant could not execute the decree both because respondent 1 did not in fact transfer the decree to him, and also because Order 21, Rule 16 and Section 146 gave him no right to do so. Against this order the present appeal has been filed.

(3.) That the decree was in fact transferred by respondent 1 to appellant seems to us beyond all dispute. In the deed respondent 1 says: I have this day transferred to you the entire amounts due in respect of the two suits.