T A ANANTHA RAMA AIYAR Vs. KUMARASWAMI PANDARAM

JUDGEMENT

(1.) FOLLOWING Venkataswami Naidu v. Rangappa Naidu 26 Ind. Cas. 944 : 2 L.W. 109 I must hold that the lower Court was not justified in considering the discharge alleged by the defendant, It certainly could not be set up against the original decree holder vide Budrudeen v. Gulam Moideen 12 Ind. Cas. 562 : 36 M. 357 : 10 M.L.T. 396 : (1911) 2 M.W.N. 473 : 24 M.L.J. 541. It is argued that it may nevertheless be considered by the Court as a ground for refusing to recognise the transfer of the decree, but in view of the wording of Order XXI, Rule 16, from which the words "if that Court thinks fit" found in the old Section 232, have been omitted, it is difficult to hold that the Court has a disoretion to decline to allow execution on this ground vide Asud Ali Molla v. Haider Ali 6 Ind. Cas. 826 : 38 C. 13 at p. 21 : 14 C.W.N. 918 : 12 C.L.J. 130.

(2.) THE order of the lower Court must be set aside and execution must be allowed to proceed. I make no order as to costs.