Chennai Court October 1917 Judgments
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Annamalai Chettiar Vs. Palamalai Pillai and Two ors.
Court: Chennai
Decided on: Oct-26-1917
Reported in: (1918)ILR41Mad265
John Wallis, Kt., C.J.1. The question is as to the effect of the explanation added to Section 64 (formerly Section 276) of the Code of Civil Procedure of 1908 that for the purposes of the section 'claims enforceable under an attachment include claims for the rateable distribution of assets.'It had been held by the Courts in India that decree-holders other than the attaching decree-holder acquired no right to rateable distribution under Section 295 (now 73) of the Code until assets had been realized in execution, and Sir Lawrence Jenkins delivering the judgment of the Judicial Committee has observed in the recent case of Mina Kumari Bibi v. Bijoy Singh Dudhuria (1917) I.L.R. 44 Calc 662 (P.C.):To bring Section 295 into play certain conditions are necessary, and one of them is that there should be assets held by the Court2. Applying this principle the Indian Courts held under Section 276 that, if the judgment-debtor has satisfied the claim of the attaching decree-holder even by alienatin...
Annavajhula Venkatachellamayya Vs. Rama Girjee Nilakanta Girjee
Court: Chennai
Decided on: Oct-26-1917
Reported in: (1918)ILR41Mad474
John Wallis, Kt., C.J.1. Under Order XXI, Rules 84--86 of the Code of Civil Procedure on the default of a purchaser at a Court auction either in making the deposit or paying the balance of purchase-money within the specified period the property is to be re-sold; and under Order XXI, Rule 71, any deficiency in price which may occur at the re-sale together with the expenses attending the re-sale, as certified to the Court, are recoverable at the instance of the decree-holder or the judgment-debtor under the provisions relating to the execution of a decree for the payment of money. By his failure to complete his purchase the purchaser commits a breach of contract and is answerable in damages to the Court or the persons on whose behalf it sells, viz., the decree-holder and the judgment-debtor. These damages estimated by the ordinary rule consist of the deficiency, if any, in the price obtained at the re-sale as compared with the price at the first sale together with the expenses of the re-...
Tirumalai Muthuveera Paramasiva Venkitaswami Naicker Vs. Muthusamy Pil ...
Court: Chennai
Decided on: Oct-25-1917
Reported in: (1918)34MLJ177
Seshagiri Aiyar, J.1. The plaintiff obtained a usufructuary mortgage from the father of the 1st defendant in 1906. He was in possession for three years. After that period, the tenants whom he had let into possession colluded with one Sekhomoni Ammal, a neighbouring Zamindarini and carried away the crops on the land without paying the landlord's share. Thereupon the plaintiff instituted csriminal proceedings against the tenants and they were convicted. For the expenses incurred in conducting the criminal proceedings the second defendant who is the step-mother of the 1st defendant executed a document, which is styled a vartamanam, in December 1909. The present suit is brought against both the defendants on that document. The 1st defendant denied the right of the 2nd defendant to be his guardian, and contended that the criminal litigation was not conducted bona fide and that he is not liable for the expenses incurred. The District Munsif came to the conclusion that the criminal prosecutio...
Mallacheruvu Raghavayya Vs. Mallacheruvu Subbayya and ors.
Court: Chennai
Decided on: Oct-25-1917
Reported in: 43Ind.Cas.908
Coutts Trotter, J.1. The facts of this case are very simple. The plaintiff on the 2nd October 1903 executed a sale-deed of certain lands to the 2nd defendant jointly with his undivided brother, the 1st defendant, for Rs. 300 0 0. At the time of the conveyance he was a minor; it is contended that he definitely represented that be was of age and I am not convinced that that allegation, if proved, would make any difference in law; but it is sufficient to say that it is not proved.2. A very great number of cases were cited before us, and a very interesting discussion took place. In my opinion the decision of the English Court of Appeal in Leslie Ltd. v. Sheill (1914) 3 K.B. 607: 30 T.L.R. 460 concludes the matter in all eases where the minor is a defendant and concludes it in his favour. I am not at all satisfied that the law is satisfactorily settled apart from Statutes, in cases where the minor is plaintiff, as the English cases seem to me to fall into two groups not easy to reconcile. I...
Tirumalai Muthuveera Paramasiva Venkitasami Naicker Vs. Muthusami Pill ...
Court: Chennai
Decided on: Oct-25-1917
Reported in: 45Ind.Cas.949
Seshagiri Aiyar, J.1. The plaintiff obtained a usufructuary mortgage from the father of the 1st defendant in 1906. He was in possession for three years. After that period, the tenants whom he had let into possession colluded with one Sekhomoni Animal, a neighbouring Zemindarini, and carried away the crops on the land without paying the landlord's share. Thereupon, the plaintiff instituted criminal proceedings against the tenants and they were convicted. For 'the expenses incurred in conducting the criminal proceedings, the 2nd defendant, who is the step-mother of the 1st defendant, executed aldocument, which is styled a Varthamanam, in December 1909. The present suit is brought against both the defendants on that document. The 1st defendant denied the right of the 2nd defendant to be his guardian and contended that the criminal litigation was not conducted bona fide and that he is not liable for the expenses incurred. The District Munsif came to the conclusion that the criminal prosecu...
Chellam Chetti and ors. Vs. Seeni Chetti and ors.
Court: Chennai
Decided on: Oct-23-1917
Reported in: AIR1918Mad74; 43Ind.Cas.801
Sadasiva Aiyar, J.1. The defendants Nos. 2 to 4 are the appellants before us. They were judgment-debtors under a decree passed in favour of Aiyyavu Chetty Aiyyavu Chetty transferred the decree to one Choka Pathan. Choka Pathan again in his turn assigned it to Seeni Chetty. Seeni Chetty applied for execution of the decree. The appellants judgment-debtors) contended that the second assignee, Seeni Chetty, trying to execute the decree, was only a benamidar of one Chidambaram Chetty and that, therefore, the Court ought not to allow a mere benamidar to execute the decree and that it was Chidambaram Chetty who was entitled to apply for execution. The appellants rely on the decision of Krishnaswami Aiyar, J., sitting as a single Judge, In re Muthukumara Asari 9 Ind. Cas 40. That learned Judge remarks: 'The law is now well-settled that a benamidar is not entitled to sue : and I think it is equally clear that he cannot apply to execute a decree on the basis of an assignment in respect of which ...
Dhulipalla Kanakam Alias Sitaramayya, Minor, by Mother and Guardian Ra ...
Court: Chennai
Decided on: Oct-22-1917
Reported in: AIR1918Mad101; 43Ind.Cas.76
1. The plaintiff sues on a promissory note executed by defendants Nos. 1 and 3. The 2nd defendant is joined as being the undivided brother of the float defendant. The father of the first two defendants carried on a trade in timber with one Naganna. On his death, the 1st defendant, as the manager of the joint family, carried the stock in trade left by his father into a similar partnership with the 3rd defendant. The debt evidenced by the promissory note was contracted in the course of this trade and it has been proved to have been incurred for the benefit of the family. The 2nd defendant pleaded that the joint family property should not be held liable for the debt. The Courts below have rejected this contention and have given a decree against the family property.2. Mr. Narayanamurthi in an elaborate argument contended that the objections of the 2nd defendant are governed by Section 247 of the Indian Contract Act and that the liability, if any, should be restricted to the assets of the p...
Marturu Subbamma Vs. Gadde Narayya
Court: Chennai
Decided on: Oct-17-1917
Reported in: 43Ind.Cas.4; (1917)33MLJ623
Wallis, C.J.1. I agree with the referring Judges and answer the question in the affirmative. A mortgagee does not become a usufructuary mortgagee within the meaning of Section 58 (d) until the mortgagor has given him possession of the mortgaged property and so put him in a position to realize his security out of the accruing rents and profits. It is because the intention is that the security shall be realised in this manner that by Section 67 proviso (a) a usufructuary mortgagee as such is debarred from suing for foreclosure or sale under the section. A mortgagee to whom possession has not been given is not a usufructuary mortgagee. Consequently he does not come within the proviso and is entitled to sue for foreclosure or sale under the section in the absence of a contract to the contrary ' at any time after the mortgage money has become payable to him.' Section 68 entitles the mortgagee to sue the mortgagor for the mortgage money 'where the mortgagee, being entitled to possession of t...
Tenjerla Suryanarayana Vs. Prabhala Subbayya
Court: Chennai
Decided on: Oct-16-1917
Reported in: AIR1918Mad504(1); 42Ind.Cas.911; (1917)33MLJ724
Wallis, C.J.1. The agreement in question, is one by which a litigant binds himself to pay his Vakil's clerk Es. 20 for giving special attention to legal business which the Vakil was bound to see to in consideration of his fee. The revised translation makes it clear that this is the scope of the agreement. The law has never allowed legal practitioners of any kind to enforce contracts with clients irrespectively of the consideration whether they conformed to public policy or not. Barristers cannot sue at all for their fees, and the fees which barrister's clerks receive by custom according to a fixed scale are mere gratuities and cannot be sued for though they are recognized on taxation, Ex parte Cotton (1848) 9 Beav 107. Solicitors' charges are now the subject of legislative enactment in England resembling the provisions in the Legal Practitioners Act as to charging more than the regulation fees. But even before these enactments, such agreements were jealously scrutinized and required to...
Doraiswami Ayyar and Five ors. Vs. T. Subramania Ayyar and Two ors.
Court: Chennai
Decided on: Oct-16-1917
Reported in: (1918)ILR41Mad188
John Wallis, Kt., C.J.1. I agree with the referring Judges. Explanation V to Section 11 of the present Code of Civil Procedure is in exactly the same terms as the corresponding explanation III to Section 13 in the Code of 1882. Under the Code of 1882 it was held by a Full Bench of this Court in Kuppusamy Ayyar v. Venkataramier : (1905)15MLJ462 , in conformity with the decisions of other High Courts, that the word 'relief' in the explanation means relief arising out of a cause of action which had accrued at the date of suit and on which the suit was brought, and did not include relief such as mesne profits accruing after the date of suit as to which no cause of action had then arisen, but which the Court was nevertheless expressly empowered to grant. The explanation having been reproduced in exactly the same words, the presumption is that it was intended to have precisely the same effect. I do not find any sufficient indication to rebut this presumption in the fact that Sections 211 and...
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