GURUSAMY GOUNDAN Vs. SIVANMALAI GOUNDAN

JUDGEMENT

(1.) Three persons Sivamalai, Chidambara and Amarapathi Goundan obtained a mortgage decree against one Ammani Animal. She sold lands to Palayakottai Pattakarar, and part of the purchase price was paid by him in satisfaction of the decree. Sivanmalai and Chidambara were satisfied, and state in their affidavit that nothing more was due. The third decree-holder Amarapathi however assigned his right to one Gurusarni Goundan and he applied to execute the decree by sale of the hypothecs after recognising his assignment.

(2.) The Subordinate Judge has found these facts to be true, and we fee no reason not to accept his finding. As he says, Amarapathi Goundan got a final decree fraudulently behind the back of the judgment debtor and other decree-holders. Accordingly he dismissed the petition and Gurusami Goundan appeals.

(3.) The appellant contends that Ammani Animal has no right to plead against his application an uncertified adjustment. We entirely agree. It makes no difference that Gurusami Goundan is not an original decree-holder but his assignee applying for recognition; because it has now been clearly held by a Full Bench that in such circumstances Order XXI, Rule 2 is still operative: Nalam Subramanyam v Devara Ramaswami . Nor in our opinion does it make any difference that Ammani Ammal is not pleading a direct payment by herself but a payment through her vendee, as satisfaction of the decree. The law in this matter has been left in an unfortunate sate. In Rama Ayyan V/s. Srinivasa Pattar 19 M. 230 a single Judge held that it the transaction, subsequently pleaded by an adjustment was by some person other than the decree-holder, Order XXI, Rule 2 or as it then was Section 258, Civil Procedure Code, would not apply. If A the judgment-debtor transfers property to B on condition of his paying; C the judgment-creditor, then if B sub subsequent assignee of the decree from C attempts to execute it A is not debarred by Order XXI, Rule 2 horn pleading the uncertified adjustment.