KUNDANMAL JASRAJ MARWADI Vs. SURAJKUVARBAI TARACHAND

JUDGEMENT

(1.) This appeal arises out of the dismissal of the plaintiff's suit on the ground that it was barred under Section 47 of the Civil Procedure Code.

(2.) Ralli Brothers of Bombay obtained a decree against the plaintiff, defendant No. 2 and one Indrabhan Nemichand as partners of a firm named Kundanmal Narayandas in suit No. 947 of 1932 in the High Court of Bombay. The decree was then assigned by the decree-holders to defendant No. 1, the step-mother of defendant No. 2. Defendant No. 1 made an application to the High Court under Order XXI, Rule 16, Civil Procedure Code, 1908, to have her name brought on record and to have the decree transferred to the Ahmednagar Court for execution. A notice was duly issued and served on the plaintiff. The plaintiff contended that the assignment was bogus and did not give defendant No. 1 a right to execute the decree. It appears that the plaintiff was called upon to furnish security, and as he failed to do so, the assignment was upheld and defendant No. 1 was allowed to proceed with the execution of the decree, The plaintiff then filed this suit for a declaration that defendant No. 1 had no right to execute the decree against him as the assignment taken by her was bogus. The defendants contended that the suit was barred as res judicata by reason of the decision in the execution proceedings upholding the assignment, and that the suit was also barred under Section 47, Civil Procedure Code. The contention regarding the bar of res judicata was disallowed, but the suit was dismissed on the ground that it was barred under Section 47, Civil Procedure Code, The plaintiff's appeal to the District Judge being summarily dismissed, he has now come in appeal to this Court.

(3.) It is urged that although the question of the validity of the assignment can be heard by the executing Court under Section 47, yet a suit to have the assignment declared invalid or bogus is also maintainable, as held in Bommmapati Veerappa V/s. Chintakunta Srinivasa Rau (1902) I.L.R. 26 Mad. 264 and Ishar Das V/s. Salig Ram [1929] A.I.R. Lah. 51. In Bommanapati Veerappa V/s. Chintakunta Srinivasa Rau it was held that a suit was maintainable at the instance of an assignee of a decree for a declaration as to the validity of the assignment, though the Court passing such a declaratory decree should limit itself to the declaration and should not declare that the assignee was entitled to execute the decree. That case was decided under the provisions of Section 244, Civil Procedure Code of 1882. But the relevant clause of that section was materially different from Sub-section (3) of Section 47 of the Civil Procedure Code of 1908. The present Sub-section (3) provides :- Where a question arises as to whether any person is or is not the representative of a party, such question shall, for the purposes of this section, be determined by the Court.