Kottayam Orient Bank Ltd. vs Moosa Rawther

Varadaraja Iyengar, J.—This revision is by the plaintiff against an order of the court below refusing his application to say the execution of a decree in Order Section 226 of 1950 obtained against him by the respondent-defendant and assigned by the defendant in favour of a stranger pending the suit. The court below rejected the application on the ground that Order 21, Rule 29 under which the application was made provided only for stay as against the defendant and not as against his assignee who was not on the party array.

Learned counsel says that the equity in plaintiff''s favour under Order 21, Rule 29 was generated at the moment the suit was instituted against the defendant decree-holder and thus the assignee from the defendant took his assignment, if at all, subject only to that equity. I think this contention is entitled to succeed. In Gurushantappa v. Nagappa AIR 1938 Bom 253, the question arose in similar circumstances and the assignee pleaded immunity on the ground of want of notice of the existence or the suit and the equity. The Court held that this want of notice did not matter and he was still bound. Reference was made to Section 49 of the C.P.C., that an assignee holds subject to equities which the judgment-debtor might have enforced against his assignor. The learned Judges held that this meant that he holds subject to equities existing at the date of the assignment and the assignee''s ignorance of the facts did not give him an overriding equity.

It follows that the order of the lower court is not right. The plaintiff was entitled to have his petition allowed though on terms. It would appear that plaintiff has in pursuance to interim order of this Court furnished security to the satisfaction of the court below for the amount covered by the decree obtained by the defendant. This security will be available to the defendant or his assignee under the order for stay in favour of the plaintiff which I pass hereby. There will however be no order for costs. Ordered accordingly.