PETHURAJU KONE Vs. THENIRKULAM MUTHUSWAMI AIYAR

JUDGEMENT

(1.) This appeal arises out of a suit under Order 21, Rule 63 to vacate an order on a claim petition. Plaintiff is the attaching creditor: defendant 1 is the claimant; defendants 2 to 4 are the judgment-debtors. Defendant l's title is based upon two sale-deeds, Ex. IV by defendants 2 to 4 to one Muthukrishna Aiyar in 1927 and Ex. I by Muthukrishna Aiyar to himself in 1932. It has been held as a question of fact that defendant 1 was a bona fide purchaser for consideration under Ex. I and plaintiff's , suit has been dismissed. In this appeal plaintiff contends that the issue between himself and defendant 1 is res judicata in his favour.

(2.) This contention is based upon the following facts. One T. V. Krishna Aiyar another creditor of defendants 2 to 4 attached in execution of his decree against them the crops standing on the land now in dispute. Muthukrishna Aiyar claimed under Ex. IV to be the owner of the land and the crops. His claim was dismissed. Against that order of dismissal he filed no suit. Muthukrishna Aiyar was, of course, the predecessor-in-title of defendant 1, and it is now argued that plaintiff represents the interests of defendants 2 to 4 What therefore was res judicata between Muthukrishna Aiyar and defendants 2 to 4 is res judicata between defendant 1 and plaintiff and defendant 1 cannot claim title to the subject-matter of this suit. The argument, as thus put forward, was not considered by the learned Subordinate Judge, who has dismissed the plea of res judicata, on the ground that the subject-matter of the claim order i.e., the crops on the land is not identical with the subject-matter of the present suit i.e., the land itself. In view of the decision in Ashna Bibi V/s. Awaljadi Bibi (1916) I.L.R. 44 Cal. 698, I think this reasoning is sound, and of itself sufficient for rejecting the plaintiff's plea, but as the general question of the status of the plaintiff in his relationship to defendants 2 to 4 has also been argued I proceed briefly to discuss it.

(3.) The statement that plaintiff is now the representative of defendants 2 to 4 is a legal fiction, and though it may derive support from some observations in Venkatachariar V/s. South Indian Bank , that is a case in which in fact the judgment- debtors had unsuccessfully resisted the future claimant and I find myself quite unable to act in the circumstances of this case, where defendants 2 to 4 are never shown to have pleaded anything upon a legal fiction which it is universally known, is almost always in direct conflict with the actual facts. In the strict sense of the word a decree-holder can never, in a suit of this kind, be the representative of his judgment-debtors. In so far as the judgment-debtors take any interest in the case at all they have their own point of view to put forward which almost invariably is in opposition to that of the decree-holder. As is stated very clearly in Gnanambal v. Parvathfi , the attachment by a decree-holder is not effected by him as the privy or representative of the judgment-debtors, but by virtue of a right inherent in him to attach what was really their property at the date of the attachment . I have not been shown any authority in which this proposition has been overruled and being the decision of a Bench of this Court it ,is binding upon me.