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Madras High Court
Sri Rajah Vagricherla … vs Sri Rajah Setrucherla Jagannadha … on 2 March, 1893
Equivalent citations: (1893) 3 MLJ 220


JUDGMENT

1. We do not consider that the order of the District Judge can be supported. The Merangi Zamindar became a transfer decree-holder on December 12th, 1890. The order for set-off was made on June 27th, 1890. That order appears to us to be valid under Section 247 of the Code of Civil Procedure. The question whether Parabrahmam’s representatives were only the nominal decree-holders for the benefit of the Merangi Zamindar cannot be investigated in execution. We must take the decree as it stands – and the judge was not at liberty to go behind it. If Parabrahmam was only a benamidar, the proper course for the Merangi Zamindar to take was to have brought a fresh suit. We further observe that although Parabrahmam and the Merangi Zamindar stated in the plaint that the promissary notes belonged to the latter, the Zamindar of Kuruppam traversed the statement and denied the Merangi Zamindar’s claim. It is conceded that the judge has taken no evidence and has assumed that the benefit of the decree does not enure to the decree-holders on the record,- but to some third party, on whose claim the court declined to adjudicate in that suit.

2. The only question which can be adjudicated upon in execution is whether the order for set-off is binding upon the Merangi Zamindar as transferee decree-holder, the transfer being subsequent to the order for set-off. Our decision must be in the affirmative.

3. It is argued by respondent’s pleader that the original decree was transferred to him within a week after it had been passed and long prior to the date of the order for set-off – but we observe that the court refused to recognize the transfer and for the purpose of execution this transfer must be treated as not made.

4. We must set aside the District Judge’s order disallowing the claim to set-off and direct that the set-off be recognized. The appellant is entitled to his costs in this Court and in the District Court.


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