Chennai Court December 1897 Judgments
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Subrahmania Pillai Vs. Muthukutti
Court: Chennai
Decided on: Dec-10-1897
Reported in: (1898)8MLJ84
1. We do not think that the service in this case was proper. Mere temporary absence of the person to be served does not justify the process-server affixing the summons to the door. (Bhomshetti v. Umabai, I.L.R. 21 B. 223 It is the duty of the peon to take some pains to find out the person to be served, so that, if possible, personal service may be effected.2. We must set aside the decree and direct that the Subordinate Judge do restore the suit to his file and dispose of it according to law.3. Costs will abide and follow the result....
Veerasamy Chetty Vs. Liladhara Vyass
Court: Chennai
Decided on: Dec-10-1897
Reported in: (1898)8MLJ110
1. We think that the Judge has misunderstood the scope of Section 315. of the Code of Civil Procedure.2. The fact that the purchase-money was handed over to the Small Cause Court under an attachment issued by that Court makes no difference. The person who paid the purchase-money is entitled under Section 315 to recover the same by way of execution from the person who has actually received it. The fact that the Small Cause Court was the medium through which the money reached the hands of the party proceeded against, cannot affect the rights or liabilities of the parties under Section 315.3. We must, therefore, set aside the order of the Judge and direct that the petition be restored to his file and disposed of according to law. The petitioner must have his costs in both Courts....
Subramania Pillai Vs. Subramania Ayyar
Court: Chennai
Decided on: Dec-10-1897
Reported in: (1898)ILR21Mad419
1. We do not think that the service in this case was proper. Mere temporary absence of the person to be served does not justify the process-server affixing the summons to the door [Bhomshetti v. Umabai I.L.R. 21 Bom. 223. It is the duty of the peon to take some pains to find out the person to be served, so that, if possible, personal service may be effected.2. We must set aside the decree and direct that the Subordinate Judge do restore the suit to his file and dispose of it according to law. Costs will abide and follow the result....
Venkata Krishnayya Vs. Narasimham
Court: Chennai
Decided on: Dec-09-1897
Reported in: (1898)8MLJ56
1. The District Judge has made a mistake of fact in stating that the application under Section 310-A, Civil Procedure Code, was not made within 30 days of the sale. It was made on the 20th February, and not on the 22nd as erroneously supposed by the District Judge, and was, therefore, within 30 days of the sale which was on the 22nd January.2. The District Judge has also, we think, erred in holding that the District Munsif had no power to entertain the application under Section 310-A. Although a petition under Section 311 C.P.C. was pending when that under Section 310-A was put in, yet when the petitions were first called up for disposal, the petitioner was, at the instance of the other side, called upon to elect whether he will proceed with the petition under Section 310-A, or with that under Section 311, and he then withdrew the latter.3. In these circumstances, we must treat the matter as if no application under Section 311 has been made. The policy of the Section is to prevent a pe...
Srinivasa Aiyangar Vs. Aiyathorai Pillai
Court: Chennai
Decided on: Dec-09-1897
Reported in: (1898)8MLJ54
1. We cannot accept the respondent's contention that no appeal lies in this case. The respondent before us, who is the purchaser, is the decree-holder. The question is one which arises in execution between him and the appellant before us who is also a party to the suit. The order, therefore, must be treated as one falling under Section 244, Code of Civil Procedure, and, therefore, appealable.2. It is next objected that the appellant before us being only a mortgagee is not entitled to the benefit of Section 310-A, Code of Civil Procedure. On the analogy of the decision in Rakhal Chunder Bose v. Dwarka Nath Misser, I.L.R. 18 C., 346 we think that the appellant is an 'owner of immovable' property' within the meaning of Section 310-A, and as his mortgage was subject to the right of the respondent under the mortgage-decree in execution of which the sale took place, he would be affected by the sale, and should, therefore, be held entitled to ask for cancellation of the sale on making the pay...
Sami Pillai Vs. Krishnasami Chetti and ors.
Court: Chennai
Decided on: Dec-09-1897
Reported in: (1898)8MLJ77
1. We must hold that the appellant is not entitled to appeal under Section 244, Civil Procedure Code. No doubt, the respondents 1 to 3 as attaching creditors in O. S. No. 21 became entitled to execute the decree in O. S. No. 5, but the sale took place in execution of the latter decree, and so far as O. S. No. 5 is concerned, the respondents cannot be held to be parties to the suit so as to entitle the applicant to treat any question arising between him and them as one under Section 244. We, however, think that he is Entitled to appeal under Section (Sic)11, The right of the said respondents to execute as attaching creditors of the decree in O. S. No. 5 is a special right created by Section 273, Civil Procedure Code. But they do not thereby become transferees of the decree as Was contended on their behalf before us. The holder of the decree in O. S, No. 5 remains decree-holder not withstanding the attachment of his rights, and as such he was entitled to apply under Section 311 and to ap...
Srinivasa Ayyangar Vs. Ayyathorai Pillai
Court: Chennai
Decided on: Dec-09-1897
Reported in: (1898)ILR21Mad416
1. We cannot accept the respondent's contention that no appeal lies in this case. The respondent before us, who is the purchaser, is the decree-holder. The question is one which arises in execution between him and the appellant before us who is also a party to the suit. The order therefore must be treated as one falling under Section 224, Code of Civil Procedure, and therefore appealable. 2. It is next objected that the appellant before us being only a mortgagee is not entitled to the benefit of Section 310 A Code of Civil Procedure. On the analogy of the decision in Rakhal Chunder Bose v. Dwarka Nath Misser I.L.R. 13 Cal. 346 we think that the appellant is an 'owner of the immoveable property' within the meaning of Section 310A and his mortgage was subject to the right of the respondent under the mortgage decree in execution of which the sale took place, he would be affected by the sale, and should therefore be held entitled to ask for cancellation of the sale on making the payments p...
Kandi Unichaman Vs. Ahmed Kutti Kayi and ors.
Court: Chennai
Decided on: Dec-08-1897
Reported in: (1898)8MLJ81
1. We think that the Subordinate Judge was Wrong in holding that the suit was barred under Article 97, Schedule ii of the Limitation Act. The claim is for money, but on a usufructuary mortgage, the cause of action being the failure of the mortgagor to secure the mortgagee in possession. The liability to secure the mortgagee in possession or in default, to repay the mortgage money, is not a liability arising under the common law on the ground of failure of consideration, but is a liability imposed by Section 68 of the Transfer of Property Act. If this liability be taken to be one arising under a covenant implied by law as incidental to the mortgage contract (which was in writing and registered), Article 116 of the Limitation Act would apply. Otherwise, the appropriate Article is 120, the case not being otherwise provided for. In either view, the suit is not barred since it was brought within six years from the time when the cause of action accrued. The ease of Sawaba Khandapa v. Abaji J...
Raja Velugoti Vs. Venkata Rao
Court: Chennai
Decided on: Dec-08-1897
Reported in: (1898)8MLJ83
1. We do not agree with the District Munsif in holding that jodi is a cess or due of the kind referred to in Schedule ii, Clause (13) of the Provincial Small Cause Courts Act. The general word 'dues' in that article must be taken to be dues similar in kind to the special dues mentioned in the article. In the present case the claim is for 'jodi,' which is rent on favourable terms. Article 11 of schedule ii has no application whatever.2. The claim was therefore cognizable by the Small Cause Court.3. We set aside the order and direct the District Munsif to receive the plaint and dispose of it according to law.4. Costs will abide and follow the result....
Venkatagiri Raja Vs. Venkat Rau
Court: Chennai
Decided on: Dec-08-1897
Reported in: (1898)ILR21Mad243
1. We do not agree with the District Munsif in holding that 'jodi' is a cess or due of the kind referred to in schedule II, Article 13 of the Provincial Small Cause Courts Act. The general word 'dues' in that article must be taken to be dues similar in kind to the special dues mentioned in the article. In the present case the claim is for 'jodi' which is rent on favourable terms. Article 11 of Schedule II has no application whatever.2. The claim was, therefore, cognizable by the Small Cause Court.3. We set aside the order and direct the District Munsif to receive the plaint and dispose of it according to law. Costs will abide and follow the result....
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