ARUMUGHA MUDALIAR Vs. KRISHNASAMI NAICKEN

JUDGEMENT

(1.) The appellant is assignee of a decree in favour of one Yogambal, in execution of which he realised Rs. 2,992-2-10, now in the lower Court. Respondent-petitioner in the lower Court, however, attached the decree as Yogambal s property after the assignment and has applied for this amount in satisfaction of his own decree. The lower Court in the order under appeal allowed him to draw the balance remaining after payment to appellant of the amount still required to make up Rs. 2,230, that being the extent to which it held the latter entitled to execute the decree under his assignment. This order was passed without consideration of the merits on the ground that the assignment had been held invalid generally against Yogambal s creditors, except as to Rs. 2,230, in Exhibit C, a decision of this Court. The question is whether Exhibit C has this effect.

(2.) Yogambal s decree, one for possession, profits and costs, was assigned to appellant as a whole. At the date of Exhibit C only the amount awarded as profits and costs prior to decree was recoverable, and the amount now in Court represents a later award of subsequent profits. Exhibit C dealt with appellant s application for execution of the earlier part of the decree and the objections to it of some attaching creditors, other than respondent, whose claims as well as part of appellant s were eventually satisfied from the amount then realised and who are not now before the Court. They objected that appellant s assignment, which was subsequent to their attachments, was intended to defeat them, and that he, therefore, was not entitled to execute. The effect of Exhibit C, as reference to it and to the order drawn up shows, was simply to reverse the order under appeal, to refuse execution in toto and to remand appellant s execution petition for disposal in the light of the observations contained in the judgments. Both judgments contained findings in favour of the validity of the then objecting creditor s attachments; but they are not material at present. The material fact is that the lower Courts have treated the remainder of Exhibit C, as establishing generally that 19 Ind. Cas. 656: 36 M. 141: 24 M. L. J. 469, appellant s assignment is valid against any of Yogambal s creditors only to an extent of Rs. 2,230, 30 Ind. Cas. 962: 29 M. L. J. 558: 18 M. L. T, 402: (1915: M, W. N. 829: 2 L. W. 1005, the priority in time of appellant s assignment over respondent s attachment and even1 of his cause of action entitles the former to no preference in the distribution of the amount realised.

(3.) The objection to this reliance on Exhibit C is that it was not a decision between appellant and respondent nor any one representing the latter. For, apart from the fact that the creditors, who were parties to Exhibit C, had all attached prior to appellant s assignment, not (like respondent) after it, they did not, as reference to the record connected with Exhibit C shows, object as representing the whole body of creditors. The application of Exhibit C as a judgment estopping appellants, has then been supported with reference to the principle enunciated in Sayam. Ramamoorthi Dhora v. Secretary of State 19 Ind. Cas. 656: 36 M. 141: 24 M. L. J. 469, But that principle rests, as pointed out by Coutts Trotter, J., in Suppa Bhattar v. Suppu Sohkaya Bhattar 30 Ind. Cas. 962: 29 M. L. J. 558: 18 M. L. T, 402: (1915) M. W. N. 829: 2 L. W. 1005, only on American authority and can, in my opinion, easily be misapplied in the different circumstances of this country. In the two cases cited it was applied, no doubt legitimately to previous direct adjudications on the right in dispute. It is inapplicable in the present case to Exhibit C, which is not an adjudication on the right in dispute or even as regards a part of the dispute in adjudication at all.