Advocates:
['FAUJDAR RAI', '', 'CHANDRA KUMAR RAI', 'PURNENDU PRAKASH PANDEY', 'C K RAI', '', 'SANKATTA RAI', 'SANKATA RAI', 'SATISH MANDHYAN', 'CHANDRAKESH RAI']

Court No. - 5

Case :- CIVIL REVISION No. - 156 of 1992

Revisionist :- Harish Narain

Opposite Party :- State of U.P.

Counsel for Revisionist :- Faujdar Rai,Chandra Kumar

Rai,Purnendu Prakash Pandey

Counsel for Opposite Party :- C.K. Rai,Chandrakesh

Rai,Sankata Rai,Sankatta Rai,Satish Mandhyan

Hon'ble Saral Srivastava,J.

1. Heard Sri Purnendu Prakash Pandey, learned counsel for

the revisionist and Sri M.D. Singh Shekhar, Senior

Counsel assisted by Sri Vaibhav Goswami, learned counsel

for the respondents.

2. The revisionist by means of present revision has

assailed the order dated 06.02.1992 passed by the District

Judge, Ballia by which an application under Section 47

CPC of the revisionist who was decree-holder has been

rejected by the court below.

3. The facts in brief are that against the land acquisition

award with respect to certain lands, landlords being

dissatisfied with quantification of award of Special Land

Officer have preferred reference which was allowed by the

reference court. The decree-holder i.e. revisionist assigned

the decree to the respondent no.2 for an amount of Rs.8

lacs and by assignment gave right to the respondent no.2

to get the decree of the judgement passed by the reference

court executed.

4. When the respondent no.2 submitted an application for

execution of the decree, an objection was filed by the

revisionist for Rs.43 lacs. In the objection filed by the

revisionist, it is stated that the respondent no.2 who was

counsel of the revisionist by playing fraud obtained

assignment by paying only Rs.8 lacs. It is further stated

that if the revisionist was aware of the fact that the decree

is worth Rs.43 lacs, there was no question of assignment

of decree for an amount of Rs.8 lacs. It is stated that the

respondent no.2 kept the revisionist under dark and did not

tell the correct amount of the decree for which decree was

to be executed, and thus, the fraud was played by the

respondent no.2 in getting the assignment of decree for a

meagre amount of Rs.8 lacs.

5. Learned District Judge considered the submissions

advanced by the parties and found that the decree by way

of assignment is executable by the assignee. The court

below has recorded a finding that a deed of assignment

was executed with regard to decree passed by the

reference court and the revisionist had been paid Rs.8 lac

in lieu thereof. The court below has considered in detail

Section 136 of Transfer of Property Act (in short 'T.P. Act')

and Section 3 of the T.P. Act which defines the actionable

claim.

6. The court below found that admittedly Rs.8 lacs has

been paid for assignment of decree and further considered

the fact that on the amount of Rs.8 lacs, the revisionist

would have earned the interest on the amount which he

received from the respondent no.2. The court below found

that the story of fraud set up by the revisionist is not

believable. In recording the said finding, the court below

has considered one further aspect that the respondent no.2

had got assignment of decree but the time was not certain

within which he would get the decree executed inasmuch

as the State of UP had filed objection and the matter may

travel to the highest court and the execution of decree may

take years, and in such view of the fact, the court below

held that the decree can be assigned and the claim being

the actionable claim as defined in Section 3 of T.P. Act

which is executable.

7. Challenging the aforesaid order, learned counsel for the

revisionist has contended that the court below has erred in

law in holding that the assignment of decree was not

obtained by the respondent no.2 through fraud. It is

submitted that it is highly improbable that the decree of

Rs.43 lacs would be assigned on a meagre price of Rs.8

lacs and this shows that the respondent no.2 who was

counsel of the revisionist had misrepresented the

revisionist by playing fraud that the decree is worth Rs.8

lacs and the revisi