VISHNUBHOTLA RAMAYYA Vs. SAJJA NAMAYYA

JUDGEMENT

(1.) These appeals have been heard together. The facts are the same in each case and they both raise the same question of law, namely, whether Section 64 of the Code of Civil Procedure applies in the circumstances. Happell, J., who heard the second appeals out of which these appeals arise was of the opinion that it did not. Being appeals filed under Clause 15 of the Letters Patent we are only concerned with the legal question.

(2.) In 1927 one Chalasani Anjaneyalu filed a suit in the Court of the Subordinate Judge of Masulinatam against two defendants, named Lakshminarayana and Chalasani Ramayya respectively. The plaintiff failed to establish his case and consequently his suit was dismissed with costs, each defendant being given one set. On the 16 April, 1930, Lakshminarayana transferred his decree for costs to the appellant. Chalasani Ramayya filed E.P. No. 42 of 1932 to enforce payment of the costs decreed to him and in these proceedings attached on the 22nd July, 1932, immovable properties belonging to the judgment-debtor. On the 20 March, 1933, the Court sold by public auction the properties attached, but before the sale was confirmed the judgment-debtor deposited the amount of the decree plus the solatium of five per cent. required by Order 21, Rule 89, and on the 29 July, 1933, the sale was set aside under Order 21, Rule 92.

(3.) On the 1 March, 1933, the appellant filed E.P. No, 32 of 1933 to enforce payment of the amount due from the judgment-debtor to him as the assignee of Lakshminarayana's decree. He asked for the attachment of the properties which Chalasani Ramayya had attached and for rateable distribution. On the 1 April, 1933, the Subordinate Judge passed an order recognising the appellant as the assignee of Lakshminarayana's decree and his right to rateable distribution, but made no order of attachment on this petition. The judgment-debtor had objected to the appellant being permitted to proceed in execution because he challenged the validity of the assignment of the decree. As the result of the order passed by the Subordinate Judge on the 1 April, 1933, the judgment-debtor appealed to this Court. His appeal was allowed and the case remanded to the Subordinate Judge with instructions to hear the judgment-debtor's case on its merits. This the Subordinate Judge did and came to the conclusion that the judgment-debtor's opposition was groundless. The result was that on the 7 December, 1936, he passed a similar order to the one which he had passed on the 1st April, 1933.