Muchiram Barik vs Ishan Chunder Chuckerbutti And Ors. on 2 April, 1894
It has been argued that in accordance with the decision in the case of Rajendra Narain Bagchi v. Watson & Co. and other decisions of this Court, Clause (d) of Section 135 does not apply to the case in which a debtor denies the existence of the claim altogether, or where the purchaser of the claim has obtained judgment for it before payment of the amount due under this section is made or tendered. These decisions have, however, been dissented from by the High Courts of Allahabad and Madras. 1 concur in the view adopted by these Courts. I think that Clause (d), Section 135, refers, as the language implies, to circumstances arising before the transfer of the actionable claim. Admittedly Clauses (a), (b) and (c) refer to circumstances corning into existence at the time of transfer, and Clause (d) reads as if the conditions mentioned in it had happened before the transfer. Moreover in his case no judgment has been given for the claim. The conclusion at which 1 have arrived is that the claim in this suit is an actionable claim, that the plaintiff is subject to the limitation provided in the first part of s 135, and cannot claim the benefit of Clause (d). At the same time ( am unable to support the decree' of the lower Court which only gives the plaintiff the purchase-money, etc., leaving him to realise that amount as best ho can by process of execution. I would set it aside and instead direct that a decree be given that if the defendant pays, within a time fixed by the Court, the sums mentioned in Section 135 of the Transfer of Property Act, the claim shall be discharged; if not, that the usual mortgage decree be given for such portion of the claim as may be found due and has not been abandoned.