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1965 DIGILAW 216 (KER)

Kulathu Iyer v. Geevarghese Koshy

1965-08-09

M.MADHAVAN NAIR

body1965
Judgment :- 1. The defendant - the appellant in these appeals - owed some money to the 2nd plaintiff, who in turn owed a larger sum to a Bank in which the former was interested. The 1st plaintiff, who is a Vakil of the place, got an assignment from the 2nd plaintiff of his debt and they joined to institute this suit on 18-2-1125 claiming Rs. 705/- odd with interest before and after suit. On the same day as the institution of the suit the defendant credited the amount in the accounts of the Bank against the 2nd plaintiff's liability to it. So the question was whether the credit given in the Bank's account or the assignment in favour of the 1st plaintiff was to have precedence. The Courts below concurred to find the credit entry in the Bank's account not to have been made with the 2nd plaintiff's assent and to decree the suit for Rs. 620.65p. In doing so the Munsiff disallowed interest till date of decree and costs in disapproval of the 1st plaintiff's conduct in having taken an assignment of the actionable claim with knowledge that it would involve litigation. Both the 1st plaintiff and the defendant went in appeal before the Subordinate Judge, who affirmed the decree and allowed interest from date of suit and the 1st plaintiff's costs in the suit. Hence these second appeals. 2. Two questions arise here for determination: firstly, the defendant's claim to benefit of the Kerala Agriculturists Debt Relief Act, 1958; and secondly the 1st plaintiff's right to costs and interest. As regards the former, the question has been taken for the first time before this Court of second appeal. The status of the defendant as an agriculturist is not admitted by the respondents. The question of benefit of Act XXXI of 1958 has only to be left open to be moved and adjudicated in other appropriate proceedings. 3. As regards costs, the Subordinate Judge has not given any reason to reverse the discretion exercised by the Munsiff. As early as 1900 there had been an interdiction against lawyers taking assignments of actionable claims, which continues to this day. 3. As regards costs, the Subordinate Judge has not given any reason to reverse the discretion exercised by the Munsiff. As early as 1900 there had been an interdiction against lawyers taking assignments of actionable claims, which continues to this day. Civil Circular No. 8 of 1076 (1900) issued by the High Court of Travancore read: "No Judge, pleader, clerk or other officer connected with Courts of justice can purchase or otherwise acquire any interest by assignment in any actionable claim falling under the jurisdiction of the Court in which he exercises his functions." Rule 451 of the Travancore Civil Courts' Guide, 1923, was: "No Vakil shall obtain assignments of decrees passed, or which have to be executed, by the Courts in which he practises, or purchase or otherwise acquire any interest by assignment in any actionable claim falling under the jurisdiction of such Courts. Vakils are prohibited from purchasing property at auction sales held by the Courts in which they practise, without the express sanction of the presiding judge who will record his reasons for granting the sanction." The Travancore Civil Courts' Guide, 1944, did not touch the above rule; it provided: "All previous Rules. Orders, Circulars and Forms which are in conflict with these Rules and Forms are hereby cancelled." There was no Rule in the Guide, 1944, touching the matter provided in R.451 of the Guide, 1923, and therefore the latter Rule continued in force. Now the matter is governed by S.136 of the Transfer of Property Act which reads: "No Judge, legal practitioner, or officer connected with any Court of justice shall buy or traffic in, or stipulate for, or agree to receive, any share of, or interest in, any actionable claim, and no Court of justice shall enforce, at his instance, or at the instance of any person claiming by or through him, any actionable claim so dealt with by him as aforesaid." Thus, right from 1900 to this day there has been a rule prohibiting legal practitioners in Travancore area from taking assignments of actionable claims tailing under the jurisdiction of the Court in which he practises. Here, the 1st plaintiff took an assignment of the unsecured debt in his favour and within a week thereof filed this suit in the very Court where he practises, giving his address as a Vakil of the same Court. Here, the 1st plaintiff took an assignment of the unsecured debt in his favour and within a week thereof filed this suit in the very Court where he practises, giving his address as a Vakil of the same Court. Though he took the precaution of joining his assignor also as a co-plaintiff, decree in the suit was sought in his own name and Courts below have decreed the suit in his favour as no objection was raised by the defendant as to the 1st plaintiff's competency to take the assignment and sue thereon. The rule is not one designed for the protection of debtors in actionable claims but calculated to assure the nobility and the high standard of purity and morality expected of the profession. The rule has therefore to be taken judicial notice of by the Court as, after all, the Bench and the Bar are only two wings of the same noble and learned profession. In the circumstances, I think, interest on the debt and costs have to be disallowed. 4. In the result, I allow these appeals in part and limit the decree passed by the Courts below to the principal sum of the debt (Rs. 620.65p. only) and discharge the same in regard to all interests and costs throughout.