Perumal Naidu vs Marukrithammal and Others

Krishnan, J.—In this case one Ramasami Naidu brought a suit against one-Subbaraju Naidu and there was a compromise decree in it, by

which, on Subbaraju Naidu paying into Court the sum of Rs. 2,000, Ramasami Naidu was to execute and register a sale-deed of his house in

favour of Subbaraju Naidu and deliver possession of the property to him. The sum of Rs. 2,000 was paid into Court accordingly and thereupon

Subbaraju Naidu applied to have the decree executed against Ramasami Naidu by. making, him execute and register a sale-deed and deliver it and

give possession of the property to him. The District Munsif passed orders in favour of Subbaraju Naidu. Thereupon there was an appeal by

Ramasami Naidu to the Sub-Court. It is not necessary to mention here the grounds of appeal as they are immaterial for the consideration of the

present appeal.

The Subordinate Judge dismissed appeal. While the appeal was pending in the Sub-Court, an application was made by one Marukrithammal to

be brought on record as additional respondent, as she alleged that she had obtained an interest in the subject-matter of the appeal, namely, the

house, by right of purchase from Subbaraju Naidu. She was accordingly made a party respondent. The appellant before me, Perumal Naidu, had

also applied to be brought on record in the appeal as assignee-decree-holder in the original suit. His application was not allowed. An order was

passed finally that Ramasami Naidu was to execute and register a sale-deed and give it over to Subbaraju Naidu and also hand over possession of

the property to him. Accordingly, a document was executed and registered and given to Subbaraju Naidu but possession of the property has not

been given yet. Now the competing applicants for possession of the property are Perumal Naidu (whom I have already mentioned) who claims as

the assignee drcree-holder; and Marukrithammal, who claims to have purchased the property from Subbaraju Naidu. Both the persons applied to

the Munsif''s Court to have possession of the property delivered to himself and herself. The District Munsif dismissed the application of

Marukrithammal and allowed the application of Perumal Naidu.

On appeal, the Subordinate Judge has reversed the order of the Munsif and remanded the case for further disposal by the Munsif. It is against

that order that Perumal Naidu comes up here in appeal. It seems to me that Perumal Naidu, as the assignee-decree-holder, has the proper claim to

execute the decree and obtain possession of the property in execution. Marukrithammal, as stated by the Munsif and as is clear from her

document, was merely the purchaser of the property from Subbaraju Naidu. The Munsif held following Hansraj Pal v. Mukhraji Kunwar [1907]

30 All. 28 that Marukrithammal could not be considered the assignee of the decree and that, if she has any right, she must enforce her rights in a

suit, and he directed Perumal Naidu to be given possession in execution. It seems to me that this view of the Munsif is correct and that his order

should not have been interfered with by the Subordinate Judge. Hansraj Pal v. Mukhraji Kunwar [1907] 30 All. 28 seems to be clear authority for

saying that the purchaser of property included in a decree does not thereby become the assignee decree-holder and does not get the right to

execute the decree or so get possession of the property purchased, by way of execution. The rival claims will, no doubt, have to be settled, as they

must be, in a suit brought by Marukrithammal, of Perumal Naidu and Marukrithammal as she claims priority over Perumal Naidu as regards the

title to the property. That matter cannot be properly decided in execution proceedings. Perumal Naidu is entitled to execute the decree as the

assignee-decree-holder, he having got an assignment of the decree itself from Subbaraju Naidu. In these circumstances, the order of the

Subordinate Judge must be set aside and that of the District Munsif restored. As no decision is arrived at in these proceedings as between the rival

claims of Perumal Naidu & Marukrithammal, it seems to me that the proper order as to costs would be to make each party bear his or her own

costs throughout.