Court : Chennai
Reported in : (1897)ILR20Mad10
ORDER1. The petitioner, who was appellant in the District Court, seeks to have the order of the District Court set aside on the ground that the Judge exercised a jurisdiction which he did not possess. That order confirmed the order of the District Munsif, which proceeded on the ground of fraud practiced upon the judgment-debtor. 2. It appears that the sale had been confirmed before the application to sotit aside was made. That being so we are of opinion that the ground assignedby the Judge for confirming the District Munsif's order is not a valid one,because the omission to send the certificate required by Section 224 could not effect the jurisdiction of the Court to sell. It would be a more irregularity not entitling any party to have the sale set aside after confirmation. The only ground, as it appears to us, on which the order of the District Munsif could be supported would be that the sale had been brought about by fraud to which the purchaser was a party. Fraud as between the decr...
Tag this Judgment!Court : Chennai
Reported in : (1897)ILR20Mad243
1. The only ground urged upon us in this second appeal is that even on the finding of the District Judge that Iyavu Chetty and Nachi Chetty were undivided, and that the property sold to plaintiff was their joint family property, still the District Judge ought not to have dismissed the suit in toto, but should have given plaintiff a decree for one-half of the property, as being the share of Iyavu Chetty therein. We cannot admit this contention. The case of Venkatarama v. Meera Labai I.L.R. 13 Mad. 275 is a clear authority for holding that the purchaser of an undivided share of one member of a Hindu family in specific family property cannot sue for partition of that portion alone, and obtain delivery thereof by metes and bounds. Still less can he do so in a case like the present where he sues on an allegation that the property is the self-acquisition of the vendor, and it is proved that it is joint family property. The course, which the plaintiff should take is pointed out in the case to...
Tag this Judgment!Court : Chennai
Reported in : (1897)ILR20Mad31
1. The accused, the karnam of Maravapalli village, on being summoned by the Tahsildar of Gooty to appear before him at Gooty on a particular day, failed to attend. For the non-attendance he was convicted under Section 174, Indian Penal Code. It appears that, on the day fixed, the Tahaildar was absent from the station on public business.2. Now it is manifest that the offence contemplated by the Section is not an omission on the part of the person summoned to be at a particular place and at a particular time, but an omission to appear at such time or place before a specified public functionary. Moreover the object of the summons was the meeting between the two. How could this object be realised unless the person summoning was present to meet the persons summoned? Would it not have been futile, even if the latter turned up at the fixed place? But the law compels no man to do that which is futile or fruitless. Lex neminem cogit ad vana seu inutilia per agenda. No doubt in this case the acc...
Tag this Judgment!Court : Chennai
Reported in : (1897)ILR20Mad84
1. The circumstances under which the promissory note was given by the defendant are stated in the reference. The consideration was the withdrawal of threatened opposition to the discharge of the insolvent and the plaintiff's consent to the arrangement among the creditors. 2. By the promissory note the plaintiff secured for himself a larger payment than he was entitled to under the composition deed, and this was unknown to the other creditors.3. It is contended on plaintiff's behalf that the circumstance that the note was given by a third party and not by the insolvent rendered the transaction an innocent one as far as the law of Insolvency is concerned.4. In our opinion it makes no difference whether the note is given by the insolvent or by a stranger if it is given with the insolvent's knowledge and as a part of an arrangement for securing to one creditor an advantage over the others. The ease is on all fours with Knight v. Hunt 5 Bing. 432. The case cited Amthul Latheef Syed Onissa B...
Tag this Judgment!Court : Chennai
Reported in : (1897)ILR20Mad366
1. A preliminary objection is taken on the ground that the order appealed against was passed under Section 243 of the Civil Procedure Code, and that no appeal lies against such an order. We do not think that this contention can be upheld. Following the reasoning and the rulings in.the cases of Ghazidin v. Fakir Bakhsh I.L.R. 7 AIL 73 Kassa Mai v. Gopi I.L.R. 10 AIL 389 Steel & Go. v. Ichchamoyi Chowdharain I.L.R. 13 Cal. 111 we hold that an appeal lies. We therefore disallow the preliminary objection.2.As to the merits, the District Judge states that he does not consider that the appellant will have difficulty in recovering any sum that may now be paid over to the respondent in execution of the decree. The decree was passed as long ago as 1883. We dismiss this appeal with costs...
Tag this Judgment!Court : Chennai
Reported in : (1897)ILR20Mad253
1. There is no provision in Act II of 1864 which enables a Collector to revive a sale which he has once cancelled. In the present case the Head Assistant Collector cancelled the sale on the 2nd November 1883. He had no power to revive the sale nearly a year afterwards as he purports to have done. The issue of the certificate was, therefore, ineffectual to create any title in the plaintiff.2. We dismiss this second appeal with costs....
Tag this Judgment!Court : Chennai
Reported in : (1897)ILR20Mad239
1. We are clearly of opinion that there was nothing illegal or opposed to public policy in the contract between the parties, so as to rendor the plaintiff's suit unsustainable. With regard to the alleged bar by limitation, the appellant urges two pleas, viz., (1) that an acknowledgment in a deposition made by a debtor is not sufficient to satisfy the requirements of Section 19 of the Limitation Act, inasmuch as a witness is bound to answer the questions put to him, and any acknowledgment cannot, therefore, be regarded as voluntary; and (2) that, in fact, the terms of the acknowledgment in Exhibit B, relied on by the lower Appellate Court is insufficient.2. The first point was ably discussed in the case of Venkata v. Parthasaradhi I.L.R. 16 Mad. 220 . The two learned judges in that case took opposite views, but we have no hesitation in expressing our concurrence with the view adopted by Muttusami Ayyar, J., viz., that a deposition given and signed by a witness in a suit is as much a wri...
Tag this Judgment!Court : Chennai
Reported in : (1897)ILR20Mad360
1. We do not understand under what provision of law the District Judge passed the order appealed against. Section 32, Civil Procedure Code, gives the Court power to strike out the name of any defendant who has been improperly joined as a party, but that must be done on or before the first hearing. In the present case the order was not made until some time after the issues were settled. Again if it appeared to the Court that the cause of action alleged against first defendant alone, and that alleged against him jointly with the other defendants, could not be conveniently tried together, the Court might have proceeded under Section 45, Civil Procedure Code, and have ordered the several causes of action to be tried separately; but (unless the parties otherwise agreed, which was not alleged in the present case) this power also could only be exercised before the first bearing.2. Lastly the first defendant might have applied under Section 46, Civil Procedure Code, to confine the suit to such...
Tag this Judgment!Court : Chennai
Reported in : (1897)ILR20Mad6
1. No one appears to oppose the appeal. We find ourselves unable to support the decree of the District Judge.2. The decree in Appeal Suit No. 419 of 1880 (Exhibit I) did not decide that the then defendants were in adverse possession of the lands as against the then landlord. It merely decided that the present plaintiffs (then second and third plaintiffs) had not then obtained registration of their title under the registered landlord, and that they could not maintain a suit to enforce acceptance of patta until such registration had been made. The registration was made in 1884 and by that registration the plaintiffs for the first time obtained a complete title on which to enforce acceptance of pattas. There is no evidence that the possession by the tenants was at any time hostile to the plaintiffs or their vendor. The mere omission to collect rent does not make the tenancy hostile.3. We must reverse the decree of the District Judge and restore that of the Sub-Collector. The plaintiff's m...
Tag this Judgment!Court : Chennai
Reported in : (1897)7MLJ81
1. The requirement of the District Munsif is a reasonable one, and within his discretion. We decline to interfere....
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