VATAKKETHALA THOTTUNGAL CHAKKU S SON MATHU Vs. ACHU

JUDGEMENT

(1.) The plaintiff is the appellant. Defendants 1 to 6 are the heirs of one Veeran Haji. The plaintiff's suit out of which this appeal arises was for rendition of accounts by defendants 1 to 6 and for recovery from them personally and from the assets of the deceased Veeran Haji the sum found due on taking accounts which is estimated to be about Rs. 25,000. The plaintiff sued as the assignee of the rights of defendants 7 to 11.

(2.) The facts are these : The deceased Veeran Haji who died in 1927 was a railway contractor. He had entered into a contract with the S.I. Ry. Co. in 1924 for doing "earthwork in the Shoranur-Nilambur line." In connexion with this work he appointed as his sub- contractors defendants 7 and 8 and one Antony, the deceased husband of defendant 9 and father of defendants 10 and 11. Under the terms of the contract Veeran Haji, after taking a commission of ten per cent. on earth-work" and 2 1/2 per cent, on "culvert work" on the amount of money paid by the railway company had to give the whole of the balance amount to the subcontractors. It is alleged in the plaint that deducting the sum of Rupees 61,424-14-0 received on several occasions from the deceased Veeran Haji, a sum of Rs. 25,000-7-8 is still due to defendants 7, 8 and 9 to 11 for the work, done by them.

(3.) In O.S. No. 76 of 1927 defendant 8 sued defendants 7, 9, and 10 and 11 for dissolution of the sub-contract partnership entered into between defendants 7 and 3 and the deceased Antony and for recovery of his share of the profits. Defendant 8 was appointed receiver by the Court. Under the orders of the Court, he sold the right of the contractors to recover the amount of debt from Veeran Haji (i.e., due from his heirs and from his assets) in public auction. The plaintiff in the present suit purchased this right for Rs. 8,700 and deposited the sale value in Court. After the confirmation of the sale the receiver under the orders of the Court executed an assignment deed to the plaintiff authorizing him to recover the debt. This assignment deed referred to as Ex. A in the judgment of the lower Court, but not admitted by it in evidence, has been admitted by us for the purpose of this appeal subject to the proof of its genuineness. The plaintiff's suit to recover the amount claimed is based on this deed of assignment. Ex. A, the assignment deed, after reciting the sub-contract between the deceased Yeeran Haji and defendants 7, 8 and Antony and referring to O.S. No. 76 of 1927, proceeds as follows: In that suit I was appointed receiver for realizing the above amount from Veeran Haji as also for performing other duties regarding the partnership. On sale by auction after due advertisement within the Court premises, the amount thus due from Veeran Haji under-orders from Court to sell it by public auction as a debt due to the partnership, you hare bid for Rs. 8,700 and deposited the whole purchase money under orders from Court. Hereby also I empower you under orders from Court to recover the debt (Edavadu) sold under orders from Court by me as receiver and purchased by you in auction and assign to you the same. None of us but you alone have hereafter any right or voice in realizing the full amount as per accounts due to Anthappan, the heirs of the deceased Antony and me as sub- contractors under Veeran Haji from Veeran Haji's heirs and assets or to alienate it in any way. This assignment deed is executed under orders from Court.