BOLLA BRAHMADU ALIAS BAPANNA Vs. RUDDARAJU VENKATARAJU

JUDGEMENT

(1.) The 6th defendant (judgment-debtor) is the appellant. This appeal has arisen out of an order passed by the Subordinate Judge allowing the 1st respondent who obtained transfer of the decree (the transfer-deed being dated 4th February 1910) from the decree-holder, to execute the decree on an application made by the 1st respondent under Order XXI, Rule 16, of the Code of Civil Procedure. A preliminary objection is taken by Mr. Narasimha Rao for the 1st respondent that as the execution application was dismissed seven days after the passing of the order appealed against on the ground that default was made by his client, the transferee-decree-holder, in taking further steps (that is, filing of the drafts of sale proclamation, etc., as directed by the order appealed against), the appellant has no cause of action to support an appeal against the order of the 19th November 1913, recognising the 1st respondent as transferee-decree-holder and allowing him to take the usual steps for executing the decree.

(2.) Mr. Narasimha Rao relies in support of his contention on the decisions of this Court, which have held that a transferee of a decree has no right to apply merely to be recognized as a decree-holder, but he ought to apply for execution of the decree itself. I am unable to see the relevancy of those decisions. The order dated 19th November 1913 now appealed against was passed on at proper application for execution of the decree by the transferee, and not on an application to merely recognise the 1st respondent as transferee decree-holder. The order not only recognised him as transferee-decree-holder, but also contained an order in his favour asking him to take steps to prosecute the execution petition as such decree-holder. The dismissal, of the execution petition one week afterwards for default does not in any way weaken the effect of that order so far as it is in his favour, and as that order is an order passed in a matter relating to the satisfaction and execution of the decree, it was clearly an appealable order under Section 47 of the Code of Civil Procedure. So long as it is in force, the questions decided by it will be res judicata against the judgment-debtors in favour of the 1st respondent in subsequent execution petitions. The dismissal for default of an execution petition after an order passed on it in the decree-holder s favour does not stand on the same footing as the dismissal of a suit for default after findings on certain preliminary issues have been given in plaintiff s favour. I would, therefore, overrule the preliminary-objection.

(3.) Coming to the merits, Mr. B. Somayya for Mr. Narayanamurthy for the appellant wished to argue several points not taken in the memorandum of appeal. We did not allow him to do so, as they depended on allegations of fact not supported by an affidavit or by anything in the printed record. Among the points taken in the appeal memorandum itself, that one which was alone argued before us is stated in several ways in grounds two to five in the appeal memorandum. The point is best stated in ground (4) which is as follows: "Payment out of Court though not certified to the Court is a material element to be considered by the Court in exercising its discretion in favour of or against the petitioner when he seeks to come on record as the transferee-decree-holder."