DOORVAS M V RAMKRISHNA AIYAR Vs. MARI GOUNDAN

JUDGEMENT

(1.) The petitioner in this case is an assignee decree-holder from one Subbier of a decree obtained by the latter in a mortgage suit, O. S. No. 100 of 1920 on the file of the first Additional Subordinate Judge's Court of Madura. On the 17 August 1921 a final decree was passed in the suit. On the 19 September 1923 Subbier was adjudicated an insolvent on a petition presented in March 1923. Respondent 4 then obtained a decree against Subbier in O. S. 248 of 1921 and pending this suit he got (in 1921) an order for attachment before judgment and attached this decree, i. e., in O. S. 100 of 1920. On the 7 July 1922 Subbier assigned this decree in O. S. 100 of 1920 to the petitioner. After respondent 4 obtained his decree in O. S. 248 of 1921 he took proceedings to execute the attached decree in O. S. 100 of 1920 and filed R. P. 53 of 1923. On the 27 June 1923 this was dismissed for default of further prosecution.

(2.) On the 20 February 1924 the petitioner filed the present petition to execute his mortgage decree as assignee of Subbier, The Court gave notice to the attaching decrees- holder respondent 4, and to the official receiver. Respondent 4 objected to the execution petition on the ground that he had attached the decree before judgment. The learned Subordinate Judge, in a very confused judgment which is exceedingly difficult to understand, has held that the attachment of the decree in favour of respondent 4 has not ceased by reason of the dismissal of his execution petition. R. P. 53, and that the petitioner's assignment from Subbier could, therefore, be recognized only subject to this attachment and subject also to the result of any proceedings which the official receiver might be advised to take.

(3.) A preliminary objection has been taken that no appeal lies because it cannot be said that the petitioner and respondent 4 are "parties to the suit or their representatives." The principle as far as one can learn it from the decided cases, seems to be that, where the dispute in execution is between the parties on the same side, so to speak, there is no appeal. As for instance as was held by Abdur Rahim, J. and myself in Yagnasami Ayyar V/s. Chidambaranatha Mudaliar A. I. R. 1921 Mad. 81 the persons must be opposed in interest in the suit and the contest must not be, for example, between a party to the same suit and his own representative. In Appavarsala Khan V/s. Mistri Khan [1916] 31 M. L. J. 44 Sadasiva Aiyar, J. was of opinion that, where the dispute relates to the rights inter se between the judgment- debtors and in the decision of which the decree-holder has absolutely no interest, in whichever way it might be decided, no question under Section 47, Civil P. C., is involved. Again in Hanumantha Rao V/s. Krishnamma A. I. R. 1924 Mad. 518 (Spencer and myself) it was held that disputes between co-decree-holders as to the right of one of them to execute a joint decree to the exclusion of the others are not questions arising between the parties to the suit, and in Raman Chettiar V/s. Chockalinga Chettiar A. I. R. 1926 Mad. 691 (Waller and Madhavan Nair, JJ.) the learned Judges held that the dispute between the parties who occupied the position of rival decree-holders was non-appealable. As against this body of opinion a case has been cited, as far as I know and as far as I can learn from the professional gentleman appearing before us, for the first time, Subbuthayammal V/s. Chidambaram Asari [1902] 25 Mad. 383 It is a most extraordinary thing that on objections as to appealability, purporting to be under Section 47 this case has never to this day come to light as far as reported decisions are concerned. The judgment is extremely short and relies on an unreported case printed as a foot-note (p. 384) and says that an order refusing to recognize the transferee of a decree passed under Section 232 of the Code (Order 21, Rule 16) may, contest or no contest, for purposes of appeal, be regarded as an order passed under Section 244 ( Section 47) and is, therefore, appealable. The unreported case cited refers to a change in the law brought about by Act 7 of 1888. Notice was of course given to the judgment-debtor in the present case under the provisions of Order 21, Rule 16. The judgment dobtor did not appear. He can scarcely be interested as to whether the petitioner or respondent 4 executed the decree. But there is this case of Subbhathayammal Vs. Chidambaram Asari [1902] 25 Mad. 383 and also another case reported in Mohini Mohan Majumdar V/s. Surandra Chandar Day [1916] 20 C. W. N. 679 which seems to be a case on all fours with the present. The learned Judges, on the whole, held that the decision is one which comes within Section 47 (3) because notice having gone to the judgment-debtor the case becomes one in which all the parties are represented. Personally I still take leave to gravely doubt whether it is right that there should be an appeal in this case. There is the authority of Subbathayammal V/s. Chidambaram Asari [1902] 25 Mad. 383 which depends on the words "contest or no contest." It is a matter on which I think somewhat strongly because modern decisions are to my mind undoubtedly in favour of disallowing an appeal in a case like the present. However, I am not going to insist on my own view in the present case because I think the matter can be disposed of on the merits.