SINNU PANDARAM Vs. SANTHOJI ROW

JUDGEMENT

(1.) We are of opinion that the application for execution should have been dismissed absolutely. The transfer of the decree in O.S. No. 39 of 1897 to the appellant will take effect against the judgment-debtor (Santhoji) in respect of the cross decree which he obtained for a larger amount against the transferrer in O.S. No. 7 of 1895 on the 3 February 1900 only on some day subsequent to the 23 October 1900, when alone he had notice of the assignment, it not being alleged that he had notice prior thereto. That being so, on 3 February 1900 the decree for a smaller amount in O.S. No. 39 of 1897 became incapable of execution under the equitable principle enunciated in Section 246, Civil Procedure Code, and at the date of the completion of the transfer by notice as against Santhoji, the decree in O.S. No. 22 of 3897 was subject to such equity and therefore under Section 233 the appellant as assignee of the decree sought to be executed was subject to such equity.

(2.) In our opinion Section 246 is not inapplicable to a case where the cross decrees are passed by the very court whose duty it is to execute them and neither has been transferred for execution to another court.

(3.) The decision in Rewa Mahton V/s. Ram Kishen Singh L.R. 13 I.A. 106 does not militate against this view, the ground of the decision being that a sale made by granting execution in contravention of Section 246 will not affect the title of a bona fide purchaser.