Kailasan Pillai V. Palaniappa Chettiar

1934 Present: Macdonell C.J., Garvin S.P.J., Drieberg
and Akbar JJ.

KAILASAN PILLAI v. PALANIAPPA CHETTIAR.

153-D. C. (Inty.) Matara, 6,364.

Decree-Assignment in writing-Seizure of decree by creditor after assignment -Priority -Sanction of Court for assignment unnecessary-Civil Procedure Code, ss. 234 and 339.

Where, after a decree has been assigned in writing, it is seized by a creditor of the assignor, the creditor is not entitled to priority merely because the assignee has made no application for execution under section 339 of the Civil Procedure Code.

The holder of the earlier assignment has preference.

It is not necessary for the validity of an assignment of a decree that it should be sanctioned by Court.

CASE referred by Akbar J. and de Silva A.J. for determination by a Bench of four Judges.

The material facts as stated by Akbar J. are as follows:-Plaintiff obtained a mortgage decree against the defendant on March 11, 1931, but he assigned this decree to the appellant by bond No. 309 of September 2, 1931, which was duly registered by the appellant. The respondent to

this appeal who was a judgment-creditor of the original plaintiff in the case now in appeal having got judgment in D. C. Galle, No. 28,986 issued a notice under section 234 of the Civil Procedure Code seizing the mortgage decree on October 8, 1931. On March 1, 1932, the appellant moved to be substituted as plaintiff, which motion was allowed on May 2, 1932. On June 24, 1932, the respondent moved under sections 234 and 339 of the Civil Procedure Code for writ to sell the land.

The question for decision was whether the seizure effected by the respondent on October 8, 1931, prevailed over the assignment of September 2, 1931.

Kurukulasuriya (with him T. S. Fernando), for substituted plaintiff, appellant.

Navaratnam (with him D. W. Fernando and S. Alles), for creditor, respondent.

Cur. adv. vult.

March 12, 1934. MACDONELL C.J.-

This matter raised a contest between the assignee of a mortgage decree and a judgment-creditor who had seized that decree under section 234 of the Civil Procedure Code. It was argued before Akbar and de Silva JJ. and was by them sent before a Full Bench.

The facts were these. On March 11, 1931, the original plaintiff obtained a mortgage decree against the defendant in this case. On September 2, 1931, he assigned that decree to the appellant in this matter who registered it on September 11, 1931. Thereafter on February 1, 1932, the appellant filed his assignment in Court and moved under Civil Procedure Code, section 339, for notice on the defendant to show cause why he the appellant should not be substituted as plaintiff of record and be allowed to take the necessary steps to execute the judgment. The defendant was duly served with this notice but did not appear, and on May 2, 1932, the appellant was substituted as plaintiff of record in place of the original plaintiff.

It is now necessary to give the facts affecting the respondent to this appeal. He, on October 23, 1930, had got judgment against the original plaintiff in this action for Rs. 515.40 in a case D. C. Galle, No. 28,986. About a year afterwards, on October 8, 1931, he issued a notice under section 234 of the Civil Procedure Code seizing the mortgage decree of March 2, 1931, pronounced in favour of the original plaintiff in this action. It will be observed that this notice was later than the assignment of the decree to the appellant but was earlier than the appellant's application under section 339 of February 1, 1932. The respondent, having issued this notice of seizure, did nothing till June 24, 1932, when he applied in this action under sections 254 and 339 of the Civil Procedure Code for a writ to have the land, the subject of the mortgage, sold. It will be remembered that the appellant had been substituted as plaintiff of record in this action some six weeks earlier. T

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