Arumugha Mudaliar vs Krishnasami Naicken

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.

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,

appellant''s assignment is valid against any of Yogambal''s creditors only to an extent of Rs. 2,230, 30 Ind. Cas. 962, 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.

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, But that principle rests, as pointed out by Coutts Trotter, J., in Suppa Bhattar v.

Suppu Sohkaya Bhattar 30 Ind. Cas. 962: (1915) M. W. N. 829, 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.

The two positions, treated by the lower Court as established by Exhibit C have already been stated; and it has been pointed out that, rightly or

wrongly, the claims with which the Court dealt were those of particular creditors; and they had all attached before appellant''s assignment. It is in

these circumstances impossible to treat the adjudication on their rights as one also on that of respondent against whom appellant maybe able to

make good new contentions such as those in paragraph 3 of his memorandum of objections in connection with the priority of his assignment, not

only to respondent''s attachment, but also (as the records show) even to his cause of action or those in paragraph 6 regarding the collusive nature

of the decree, under which the attachment was made. Those matters were not and could not have been submitted to the Court, when Exhibit C

was passed; and it cannot be treated as concluding the present parties in respect of them.

The second point, which the lower Court accepted Exhibit C as deciding, the method, in which the amount then expected to be realised should

be distributed, is, moreover, in fact dealt with only by one learned Judge, the other confining himself absolutely to a discussion of the objections to

the validity of the attachments then in question, a matter now irrelevant, and to an expression of concurrence in the order for remand and re-hearing

of appellant''s execution petition; and accordingly, whilst the observations of one learned Judge, which are in question, were entitled to the

respectful consideration of the lower Court in the proceeding in which they were made, they cannot be regarded as part of the Court''s

adjudication on it or as an adjudication binding on the lower Court in other proceedings.

Exhibit C thus affording no ground of decision, the question id whether respondent is entitled to an enquiry into or a favourable order on the

merits of his claim in these proceedings. He can establish that claim only by showing that the decree was Yogambal''s property and could be

attached by him as such. That is in accordance with his contentions that the assignment of it to appellant was voidable at his instance as intended to

defeat him amongst other creditors. But he can put forward such a plea only as representing the creditors as a body. Ishvar Timappa Hegde v.

Devar Venkappa Skanbog 5 Bom. L. R. 19, and Asan Kani Ravuttar v. Somasundaram Chettiar 4 M L. T. 66, And he does not profess to

represent them nor could he do so in an enquiry, such as the present, u/s 47 of the Code of Civil Procedure. In these circumstances he is not,

entitled to a remand. The lower Court''s order is, therefore, set aside and respondent''s petition is dismissed with costs in both Courts.