A NARASIMAIAH Vs. JAWANTHARAJ SOWCAR

JUDGEMENT

(1.) This petition is against the decision of the District Judge of Chingleput in a matter of execution. The counter-petitioner is the transferee-decree-holder in S.C.S. No. 743 of 1920 on the file of the District Munsif of Poonamallee. In that suit which was on a promissory note the plaintiff obtained a decree that the first defendant in that suit do pay him the sum sued for from the estate of the late husband of the promisor. The present petitioner was the 3rd defendant in that suit and was impleaded as one of the heirs of the legal estate of the husband of the promisor. Plaintiff exonerated him in that suit and the suit was dismissed against him. The petitioner sued later on for possession of that estate and obtained a decree on 1st December 1923 for delivery of the estate. In the meantime.the-plaintiff in the Small Cause Suit transferred his decree to the present counter-petitioner who on 29 November 1923, that is, two days before the delivery to the petitioner, attached part of the estate in execution. The petitioner then objected that as the estate was now in his hands it was not liable under the Small Cause decree. Both the Lower Courts have held that if he wanted to free the estate from the burden of the Small Cause decree he ought to have agitated the matter in the Small Cause suit. To this it is objected now that as the plaintiff in the Small Cause Suit chose to exonerate the petitioner in that suit, it was not possible for him to have agitated the matter there.

(2.) The form of the Small Cause decree is not happy and may not have expressed what the real intention of the Judge was. But, as it stands, it does not direct that the estate of the deceased now in the hands of the 1 defendant do pay the decree amount."

(3.) but that the first defendant do pay the decree amount from the estate of the deceased.