SHANMUGAM ALIAS MUTHUKARUPPAN Vs. NSRADHAKRISHNA SARMA

JUDGEMENT

(1.) The facts of the application under Order 21, Rule 16 and Order 34, Rule 6, Civil Procedure Code, out of which this appeal arises, are as; follows:

(2.) The appellant here was the second respondent to the application in the Court below, while the 1 respondent here was the applicant there. The application prayed that the assignment in favour of the applicant of rights under the final decree in a mortgage suit, O.S. No. 139 of 1926, Sub-Court, Madura, by the decree-holder therein, may be recognised, and that a decree may be passed against the first judgment-debtor, the father of the second personally and against the joint family assets of the two defendants for Rs. 34,538-14-11, being the unrealised balance still outstanding after the sale in execution of the final decree in the suit. The assignment relied on as the basis of the application was one effected by the original decree-holder after the confirmation of the execution sale under the final decree. The deed of assignment is filed as Exhibit P-1 and is dated 26 January, 1943.-It provided that the profit and loss incidental to the assignment was to be the assignee's own concern and described the first item of the B schedule attached to it, which is the item with which we are concerned in this appeal, as the right to obtain a personal decree against defendants 1 and 2 in O.S. No. 139 of 1926, Sub-Court, Madura, as per the mortgage decree already passed therein, after giving credit to the sum of Rs. 11,100 realised by the auction sale of the properties comprised in the mortgage decree. The respondents to the application resisted it--the first respondent, the father of the appellant before us, contending that the assignment in favour of the petitioner was inoperative, being a benami transaction unsupported by consideration, the second respondent, the appellant before us, contending that the decree was liable to be scaled down under Madras Act IV of 1938 and that if that was done, no further amount would be found due. The Principal Subordinate Judge of Madura, who tried the application, raised two points, for determination: (1) whether the assignment is true and valid; and (2) whether the second defendant is entitled to have the decree scaled down. He found on both the points in favour of the petitioner and allowed the application. Against this order the-second respondent in the Court below has preferred this appeal.

(3.) Both the points have been reiterated before us in appeal by Mr. K. S. Ramabhadra Ayyar, the learned advocate for the appellant, with the emphasis and exhaustiveness characteristic of him. The learned advocate also raised a further point of the unmaintainability of the application out of which this appeal arises, to which we shall in detail refer in the sequel.