PALLADUGULA SURYANARAYANA Vs. SAMAYAMANTHULA NAGESWARA RAO

JUDGEMENT

(1.) The question of the appeal is whether the appellant possesses a right of set-off by virtue of Section 49 of the Civil P. C.. The section says that a transferee of a decree shall hold it subject to the ewities which the judgment-debtor might have enforced against the original decree-holder.

(2.) In O. S No. 556 of 1920 on the file of the Court of the District Munsiff of Razole, the plaintiff, one Mylavarapu Venkataratnam, obtained a money decree against the appellant. In excution of it the decree-holder attached certain immovable purchased the properties. Thereupon the appellant applied to the Court under Order 21, Rule 90 for an order setting aside the sale. His application was dismissed; but on appeal the sale was set aside. This was on the 30 January, 1930. The 15 September, 1933. It was then manifest that the appellant was entitled to be placed in possession of the properties with mesne profits from the date on which he had been dispossessed by the decree-holder. The decree-holder died and on the 4 Febrary, 1934, hislegal representatives transferred the decree to the respondent. On the 9 January, 1936, the appellant filed a petition asking for restitution of the decree for mesne frofits. On the 11 September, 1937, the Court ordered the properties to be deliverred to him and on the 25 March, 1938, it passed a decree for mesne profits, the amount being fixed at Rs. 721-6-0.

(3.) In proceedings instituted by the respondent for the excution of the decree obtained in O.S. No. 556 of 1920, the appellant sought to set off the amount of the decree which he obtained for mesne profits. The District Munsiff disallowed the claim on the ground that the decree for mesne profits had been obtained after the assignment to the respondent. On appeal his decisiion was concurred in by the Subordinate Judge. This appeal is from the decree passed by the Subordinate Judge. The appellant maintains that the fact that the amount of mesne profits had not been ascertained at the date of the assignment matters not and that Section 49 operates irrespective of notice. We consider that these contentions are well founded.