Chennai Court February 1921 Judgments
Sankara Nainar Pillai and ors. Vs. Puthiya Veettil Thangamma and ors.
Court: Chennai
Decided on: Feb-23-1921
Reported in: AIR1922Mad247; (1922)ILR65Mad202
Spencer, J.1. The decree that was passed by the District Munsif upon this suit for redemption, though styled a preliminary decree and. passed under the Code of Civil Procedure, 1908, provided for sale of the mortgaged properties if the money required for redemption was not paid by a certain date. There was thus no need for anyone to apply for an order for sale. But in a redemption suit, the decree-holder being the mortgagor, it has been held in Govinda Taragan v. Veeran I.L.R. (1913) Mad. 32. Govinda Menon v. Kombunni Mannadiar C.M.S.A and Abdul Kadir v. Samipandia Tevar I.L.R.(1920) Mad. 835 that he as well as the mortgagee has a right to execute the decree by applying for sale, and I think we should follow those decisions.2. As regards the applications of 4th April 1916 and 23rd. June 1916 for an extension of time for depositing the redemption money in Court, it may be conceded that. they did not aid the particular form of execution which has ultimately been reached, but if they were...
Tag this Judgment!Sankaranarayana Pillai and ors. Vs. Puthiya Veettil Thangamma and anr.
Court: Chennai
Decided on: Feb-23-1921
Reported in: 70Ind.Cas.333
Spencer, J.1. The decree that was passed by the District Munsif upon this suit for redemption, though styled a preliminary decree and passed under the Code of Civil Procedure, 1908, provided for sale of the mortgaged properties if the money required for redemption was not paid by a certain date. There was thus no need for any one to apply for an order for sale. But in a redemption suit, the decree-holder being the mortgagor, it has been held in Govinda Taragan v. Veeran 12 Ind. Cas. 432. And Civil Miscellaneous Second Appeal No. 99 of 1915 and Mahomed Abdul Kadir v. Sami Pandia Tevar 60 Ind. Cas. 267. that he as well as the mortgagee has aright to execute the decree by applying for sale, and I think we should follow those decisions.2. As regards the applications of 4th April 1916 and 23rd June 1916, for an extension of time for depositing the redemption money in Court, it may be conceded that they did not aid the particular form of execution which had ultimately been reached, but if th...
Tag this Judgment!Jayanti Venkayya and anr. Vs. Damisetti Sathiraju and ors.
Court: Chennai
Decided on: Feb-22-1921
Reported in: AIR1921Mad514(1); (1921)41MLJ117
1. This is an appeal from the judgment of the Subordinate Judge's Court of Cocanada in a mortgage suit and a question of some importance has been argued before us by Mr. Somasundaram as to whether the starting point for an application for a decree absolute under Order 34, Rule 5, C.P.C, which is governed by Article 181 of the Limitation Act is the date of the original decree or the date of the appellate decree which affirmed the original decree.2. It had long been regarded as well-settled in this Court that the starting point under. Article 181 was the date of the appellate decree, and there is a decision of the Privy Council in Bhuf Indar Bahadur Singh v. Bijai Bahadur Singh I.L.R. (1900) All. 152 which strongly supports that view. In that case the District Judge passed a decree giving the plaintiff possession with future mesrie profits. That decree was set aside by the High Court and was restored, after a great many years, by the Privy Council. The question then arose in execution as...
Tag this Judgment!Sundaram Alias Mytheenbibi Vs. Mamsa Mavuthar, Sheikkasim Mavuthar
Court: Chennai
Decided on: Feb-22-1921
Reported in: AIR1921Mad157; (1921)40MLJ497
John Wallis, C.J.1. The interpretation of the words 'whose immoveable property has been sold', which were found in Section 311 of the Code of 1882 as to setting aside sales for irregularity and were used in Section 310-A, enacted subsequently, as to setting aside a Court sale on payment of the decree amount and five per cent on the purchase money, gave rise to much difference of opinion, and were not reproduced in the corresponding Rules 90 and 89 of Order 21 of the Code of 1908. As regards Section 310-A there was a conflict of opinion as to the nature of the interest which was sufficient to justify an application under the section and also as to whether a transferee by way of private sale from the judgment debtor after attachment but before the court sale, and a similar transferee after the court sale, were persons authorized to apply under the section. In Paresh Nath Singha v. Nabogopal Ghattopadhaya I.L.R. (1901) Cal 1 it was decided by a Full Bench in Calcutta, Rampini, J. dissenti...
Tag this Judgment!Baluswami Aiyar Vs. Lakshmana Aiyar and Three ors.
Court: Chennai
Decided on: Feb-22-1921
Reported in: AIR1921Mad172; (1921)ILR44Mad605
ORDERJohn Wallis, C.J.1. The facts have been fully set out in the Judgment of Coutts Trotter, J., and again by my learned brother. After hearing the case very fully argued I am unable to differ from the finding of the learned Judge that the second defendant's consent to the contract of sale entered into by his father has not been proved. T.V. Subbayyan, the second witness examined for the plaintiff on commission, merely speaks to the second defendant's presence at a meeting at Madura when the sale was discussed, but admittedly no agreement was come to with the first defendant on that occasion. He does corroborate the first plaintiff's statement that at that meeting the second defendant consented to the sale for not less than Rs. 30,000. It is said for the plaintiffs that when the agreement was concluded in Madras a telegram mentioning the fact was sent to second defendant, but the telegram has not been produced as it might have been. All that plaintiff's witness No. 3 says is that such...
Tag this Judgment!Jayanti Venkayya and anr. Vs. Damisetti Sathiraju and Six ors.
Court: Chennai
Decided on: Feb-22-1921
Reported in: (1921)ILR44Mad714
1. This is an Appeal from the judgment of the Subordinate Judge's Court of Cocanada in a mortgage suit and a question of some importance has been argued before us by Mr. Somasundaram as to whether the starling point for an application for a decree absolute under Order XXXIV, Rule 5, Civil Procedure Code, which is governed by Article 181 of the Limitation Act, is the date of the original decree or the date of the appellate decree which affirmed the original decree.2. It had long been regarded as well-settled in this Court that the starting point under Article 181 was the date of the appellate decree, and there is a decision of the Privy Council in Bhup Indar Bahadur Singh v. Bijai Bahadur Singh (1901) I.L.R., 23 All., 152 (P.C.) which strongly supports that view. In that case, the District Judge passed a decree giving the plaintiff possession with future mesne profits. That decree was set aside by the High Court and was restored after a great many years by the Privy Council. The questio...
Tag this Judgment!Baluswami Aiyar Vs. Lakshmana Aiyar and ors.
Court: Chennai
Decided on: Feb-22-1921
Reported in: 63Ind.Cas.374; (1921)41MLJ129
John Wallis, C.J.1. I agree with the answer proposed by Kumaraswami Sastri, J., which is in accordance with the view taken in Juturi Nagiah v. Venkatarama Sastrulu 15 Ind. Cas. 623 to which I was a party, and also, in nay opinion, with the earlier decision of White, C.J. and Krishnaswami Ayyar, J., in Ponaka Subbarami Reddi v. Vadlamudi Seshachallan Chetty 5 Ind. Cas. 79. When these learned Judges observed at page 350: Page of 33 M.--Ed. 'The plaintiff asks for a decree against the shares of the first and fourth defendants at least. This we think he cannot have:' all they meant, as appears from the rest of the judgment, was that he could not have a decree directing these defendants who were parties to the agreement to convey their own interest at a reduced price. This might have been granted in England, bus in cases governed by Section 15 of the Specific Relief Act a plaintiff can only have part-performance if be is willing to pay the full contrast price, and to waive all claims for co...
Tag this Judgment!Sri Rajah Venkata Ramiah Appa Rao Bahadur, Zamindar Garu of Nuzvid Vs. ...
Court: Chennai
Decided on: Feb-21-1921
Reported in: AIR1922Mad281; 66Ind.Cas.376; (1922)42MLJ161
Sadasiva Aiyar, J.1. The 1st defendant (appellant) is the Zemindar of Mirzapuram and the plaintiff (respondent) is the purchaser in the Court-auction sale of a certain cultivable land in the estate, the sale having been held in execution of a mortgage decree passed against one P. Venkayya who was the ryot tenant of the land till 1397 the mortgage suit having been brought against him in 1906 when he had ceased to be the tenant of the land. In 1897, the said P. Venkayya abandoned the land and the Zemindar took possession of it and yet as Venkayya was the original mortgagor ('the mortgage deed being dated 1894) he was impleaded as the defendant in the mortgage suit of 1906 and the Zamindar who was in possession was not impleaded. The plaintiff as the Court auction-purchaser brought this suit in 1915 in ejectment of the 1st defendant the Zaraindar who is in possession of the land.2. The Lower Appellate Court held ([) that as the land was admittedly ryoti land till 1897, it could never beco...
Tag this Judgment!Sri Rajah Venkataramiah Appa Rao Bahadur, Zamindar Guru of Nuzvid Vs. ...
Court: Chennai
Decided on: Feb-21-1921
Reported in: (1922)ILR65Mad39
Sadasiva Ayyar, J.1. The First defendant is the appellant. He is zamindar of the Mirzapuram Estate, and the plaintiff being the person who purchased a holding in the estate from the purchaser in a Court auction-sale held in 1909 in execution of the mortgage decree for sale passed in Original Suit No. 229 of 1906 on the file of the District Munsif's Court of Bezwada against the legal representatives of the original tenant of the holding (by name P. Venkayya), who had executed the mortgage, deed in 1894. This suit was brought for possession of the lands comprised in the holding, as the first defendant's father (then zamindar) obstructed the plaintiff's enjoyment in 1910.2. The first defendant pleaded (among other defences):(a) that the original tenant relinquished the land to the defendant's father in 1894 [see paragraph 2 of the written statement. At the trial, Fasli 1307 (or 1897-98) seems to have been mentioned as the date of the relinquishment];(b) that the land has Been thereafter e...
Tag this Judgment!Pusarapu Venkata Reddayya Vs. Thoram Yarakayya and ors.
Court: Chennai
Decided on: Feb-18-1921
Reported in: AIR1921Mad415; (1921)41MLJ312
Sadasiva Aiyar, J.1. The plaintiff is the appellant before us in this Second Appeal. He brought the suit as the assignee of a mortgage bond executed by the 1st defendant in 1889 in favour of the 29th defendant's faiher. The validity of the assignment itself was questioned, but the District Judge was justified in rejecting that plea as the assignor admitted the assignment.2. The suit was brought for sale of the 1st defendant's rights in the mortgaged properties and the Subordinate Judge decreed the suit, the 1st defendant's interest being one-fourth share of the pLalnt properties as established in the preliminary decree for partition in a suit of 1897 brought by the 1st defendant as adopted son against the after-born natural son of his father. That decree for partition was dated in January 1902 and it decreed partition of the immoveable properties in A and B Schedules and of the moveables in C and D Schedules to the plaint. The 1st defendant transferred that portion of the decree which ...
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