Chennai Court November 1890 Judgments
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Bamasamiengar Vs. Andapillai
Court: Chennai
Decided on: Nov-07-1890
Reported in: (1896)6MLJ252
ORDER1. At the hearing of the appeal our attention was not drawn to the facts that the son applied for execution of the whole decree stating that his father would not join him in such application and that notice was given to the father. ' These facts alter the position considerably. The effect of the decree in the partition suit was to make the son, by operation of law, an assignee of 1/5th of the judgment-debt in the suit brought by his father. Such an assignee has a right, if the original decree-holder and other assignees (if any) do not consent to join him in applying for execution, to apply himself for execution of the whole decree, making them counter-petitioners by giving them notice. Otherwise he would have no means of obtaining his rights under his assignment but by a aspirate suit, and there seems no reason why he should be driven to such a circuitous course when by applying for execution the rights of all parties can be properly determined by the Court.2. In this view no ques...
Subbayya and anr. Vs. Krishna
Court: Chennai
Decided on: Nov-07-1890
Reported in: (1891)ILR14Mad186
Muttusami Ayyar, J.1. The appellants are parties interested in the due administration of an endowed public charity in Tanjore, and the respondent is its present trustee by right of inheritance. The former charged the latter with negligence and misconduct and instituted this suit in the District Court of Tanjore to remove him from the office of trustee and to have another appointed in his place. The Judge held that he had no jurisdiction to entertain the suit under Section 539 of the Code of Civil Procedure, and, relying on the decision in Narasimha v. Ayyan I.L.R. 12 Mad. 157), dismissed the claim with costs.2. The contention in appeal is that the Judge has jurisdiction, and if he has no jurisdiction, he ought to have returned the plaint to be presented to a Court of competent jurisdiction. It is urged that since Narasimha v. Ayyan I.L.R. 12 Mad. 157), was decided, Section 539 has been amended, and that, as pointed out in Chimpa v. Pattabhirama (Appeal No. 199 of 1887 not reported), th...
Ramasami Vs. Anda Pillai
Court: Chennai
Decided on: Nov-07-1890
Reported in: (1891)ILR14Mad252
1. At the hearing of the appeal, our attention was not drawn to the facts that the son applied for execution of the whole decree, stating that his father would not join him in such application, and that notice was given to the father.2. These facts alter the position considerably.3. The effect of the decree in the partition suit was to make the son, by operation of law, an assignee of one-fifth of the judgment-debt in the suit brought by his father.4. Such an assignee has a right, if the original decree-holder and other assignees, if any, do not consent to join him in applying for execution, to apply himself for execution of the whole decree making them counter-petitioners by giving them notice. Otherwise, he would have no means of obtaining his right under his assignment, but by a separate suit, and there seems no reason why he should be driven to such a circuitous course, when, by applying for execution, the right of all parties can be properly determined by the Court.5. In this view...
Govinda Vs. Bhandari
Court: Chennai
Decided on: Nov-06-1890
Reported in: (1891)ILR14Mad81
1. A preliminary objection is taken on behalf of respondent that the appeal is 113 days out of time.2. If the time occupied in disposing of the application for review by the Subordinate Judge's Court, viz., 152 days, is allowed and excluded, it is admitted the appeal will be in time. The question is whether the appellant has shown any sufficient ground for the review time being excluded. He cannot claim its exclusion as of right, but merely as a matter of grace within the judicial discretion of the Court. The grounds of review, which have been read, are, with one exception, grounds which were already argued and decided against in appeal and are not grounds for review.3. Certain documents were said to have been newly discovered, but the circumstances in which they are alleged to have been discovered are said to be such as should not be believed. This was the view taken by the Subordinate Judge and we cannot say that it was unfounded.4. It has also been brought to our notice in this conn...
Ramayya Vs. Guruva and ors.
Court: Chennai
Decided on: Nov-05-1890
Reported in: (1891)ILR14Mad232
1. The question to be determined in this second appeal is whether the plaintiff is entitled to a decree for recovery of the amount due to him under his mortgage by sale of the mortgaged property. The Court of First Instance held he was so entitled and gave him a decree, but the Lower Appellate Court held he was not, and dismissed his suit. The mortgage was executed after the Transfer of Property Act came into force, and, therefore, the rights of the mortgagee are those declared by that Act. Section 67 gives the mortgagee the right to obtain from the Court a decree for sale 'in the absence of a contract to the contrary,' but with the proviso that nothing in that section shall be deemed (a) (inter alia) to authorize a usufructuary mortgagee as such to institute a suit for foreclosure or sale. The term usufructuary mortgage is defined by Section 58 (d) to be 'when the mortgagor delivers possession of the mortgaged property to the morgagee and authorizes him to retain such possession until...
Kaveri Vs. Venkamma
Court: Chennai
Decided on: Nov-05-1890
Reported in: (1891)ILR14Mad396
1. From the reported cases Sabhanatha v. Lakshmi I.L.R. 7 Mad. 80, Yusuf v. Sirdar I.L.R. 7 Mad. 83 it appears to us that what has to be determined is whether the sum is payable by an ascertained date. This is a question purely of construction. Although a decree may not in express terms fix a specified date, yet if it can be gathered from the decree as a whole that payment is directed to be made on dates or at periods which are sufficiently indicated by the terms of the decree, the requirements of Article 179, __________________________________________________________________________________________________________________________________ [Article 179: __________________________________________________________________________________________________________________________________ Description of application. | Period of | Time from which period begins | limitation. | to run. ______________________________________________________________________________________________________________...
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