Chennai Court November 1923 Judgments
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Rajagopala Aiyar, Minor, by Guardian Ramachandra Aiyar Vs. Ramanujacha ...
Court: Chennai
Decided on: Nov-06-1923
Reported in: AIR1924Mad431; (1924)46MLJ104
ORDERWalter Salis Schwabe, K.C., C.J.1. If this matter were free from authority I should incline to the view that non-compliance with the provisions of Order 21, Rule 22 was a material irregularity, and not an illegality which would make the subsequent sale a nullity. in England there was a rule of Common Law that judgments after the lapse of a year and a day could not be executed unless an order for what was known as a scire facias was first obtained. There are authorities to the effect that the disregard of that rule rendered a subsequent sale in execution voidable and not void Blanchenay v. Bart 4 QB 707 and Good Title v. Had Title 9 Dowl. 1009, and the same rule applies in America--See Freeman on Void Judicial Sales, page 97. But in my Judgment there are authorities here to the contrary which preclude such a view being taken here. here. In Gopal Chunder Chatterjee v. Gunamani Dasi ILR(1892) C 370 their Lordships of the Calcutta High Court laid down that a notice under Section 248 o...
K. Ramaswami Naicker Vs. Alamelu Ammal
Court: Chennai
Decided on: Nov-06-1923
Reported in: AIR1924Mad604; (1924)46MLJ298
Coutts Trotter, J.1. This is a curious case which arises out of the rather complicated affairs of a man called Chockalinga Naicker, who was adjudicated insolvent in February, 1915. I have had occasion to go into the story at considerable length on another occasion and I need only, for the purpose of the present case, recapitulate the circumstances very briefly. On the 2nd September, 1910, Chockalingam purported to transfer the lands to Pachaimuthu Naicker for Rs. 2,000. On the 27th June, 1912, Pachaimuthu in his turn transferred them to Ramaswami Naicker, who is closely related in a double way to the insolvent Chockalingam for Rs. 3,000. On the 27th of June, 1914 Ramaswami Naicker purported to transfer the lands to Alamelu Ammal for Rs. 4,550. In the course of the insolvency of Chockalingam, the Official Assignee challenged these alienations. He challenged them as being not bona fide and as being without consideration, and the end of that was that I tried a proceeding in which the Offi...
Rajagopala Ayyar Minor, by Guardian Ramachandra Ayyar Vs. Ramanujachar ...
Court: Chennai
Decided on: Nov-06-1923
Reported in: (1924)ILR47Mad288
ORDERWalter Salis Schwabe, Kt., K.C.C.J.1. A preliminary point is taken that no Second Appeal lies because it is said that this is an appeal on a petition based on there being a material irregularity in publishing or conducting the sale within the meaning of Order XXI, Rule 90, that the order made under Rule 92 setting aside the sale, was an order made by reason of that material irregularity or fraud, and that as no Second Appeal lies from orders made under Rule 92, there can be no Second Appeal here. The answer is that it may be perfectly true as regards part of the appeal, but one of the grounds on which the appellant relies is that no notice was given of the application for attachment and order for the sale of the property, and that that comes under Section 47 of the Civil Procedure Code, and is therefore appealable as a decree.2. The only direct authority on the point is the judgment of Oldfield and Seshagiri Ayyar, JJ., in Neelu Neithiar v. Subramania Moothan (1920) 11 L.W. 59 whe...
A. Rathnasabhapathy Chetty Vs. Lakshma Ammal and ors.
Court: Chennai
Decided on: Nov-06-1923
Reported in: 80Ind.Cas.618
Coutts Trotter, J.1. This is a hopeless appeal arising on the construction of a deed of gift, dated the 16th of January 1888. By that the testator, one Tiruvanmiyur Murugappa Chetty, made a disposition of his properties as follows: He executes a deed of gift in favour of his wife Lakshmi Ammal and later on in the second clause, after setting out that it is his self-acquired property, he says that he brought a deed of gift into existence 'in order that you may enjoy my self-acquired property as you are my wife and as you have no male issue.' Later on he once more recites that he has gifted away this house worth Rs. 1,000 and provides that out of the rent she is to pay Rs. 5 every month to the Dharmakartha of Tiruvanmiyur temple for performing pooja and utilise the remainder for her maintenance. Then comes the clause which is sought to be made the basis of the argument. 'After your life-time, you shall leave the said manai, house and the document relating thereto to Rajammal, the eldest ...
V. Sesha Ayyar Vs. Venkatasubba Chetty and ors.
Court: Chennai
Decided on: Nov-06-1923
Reported in: AIR1924Mad487
Odgers, J.1. This is a revision petition against the order of the Sub-Divisional Magistrate of Trichinopoly, acquitting accused Nos. 2 to 5, who were charged before him, under Section 55(1) of Madras Act (V of 1920) and Section 109, Indian Penal Code. The Magistrate was wrong in saying that be acquitted the accused under Section 245, Criminal Procedure Code. What he really did was to refuse to entertain or proceed with the complaint, on a legal point raised by the defence. The Magistrate rightly held that as no sanction had been obtained under Section 196, Criminal Procedure Code, as amended by Section 3 of Act XXXIX of 1920, the new portion of the Pinal Code, Section 171-A-1, relating to election offences and inquiries, was not applicable to this case. The accused Nos. 2 to 5 were charged with the abetment of an election offence, i.e., an application for a second voting paper by a person who has already voted once at the Bme election, punishable under Section 55(1) of the Madras Act V...
A.R.P.R. Viswanathan Chetty Vs. M.N.M. Somasundaram Chetty Alias Nagap ...
Court: Chennai
Decided on: Nov-05-1923
Reported in: (1924)46MLJ131
Krishnan, J.1. In this case the district Munsif has refused to issue a commission to examine the 2nd defendant as his own witness, and the revision is against that order. The learned Munsif dismissed the petitioner's petition rather summarily without noticing the importance of the fact that the defendant was the person applying and without his attention having been drawn to the cases which show in what manner a Court should deal with an application of a defendant to examine himself as a witness on commission as distinguished from an application by a plaintiff. A reference to the case Rose v. Woodford (1894) 1 Ch. 38 and to the case Sarat v. Ram (1921) 35. CLJ 77 will show how a defendants application should be dealt with. In this case a defendant has been a resident of Rangoon with his family for many years. He was served with summons there. The plaintiff himself was a resident of Rangoon and was examined on commission himself there. In these circumstances the defendant should have bee...
K.V. Periya Miyana Marakayar and Sons and ors. Vs. P.K. Subramania Aiy ...
Court: Chennai
Decided on: Nov-05-1923
Reported in: AIR1924Mad612; (1924)46MLJ255
Walter Salis Schwabe, K.C., C.J.1. This is an appeal from an order made by Kumaraswami Sastri, J. under Order 37 of the Civil Procedure Code, the suit being a suit on hundis given by the defendants to the plaintiffs or their predecessors. Long affidavits were put in on both sides, and a large body of correspondence, by no means complete, is exhibited to those affidavits.2. The question to be considered on applications under Order 37, Rule 3 is whether or not a triable issue is disclosed on affidavit or otherwise by the defendant. By triable issue is meant a plea which is at least plausible. It is not enough for instance, to say, ' I have got a good defence but the defendant must say what the defence is, and, as a rule, bring something before the Court to show that it is a bona fide defence and not a mere attempt to gain time by getting leave to defend. There is not great difference between those cases where it is right to give judgment and those where it is right to give leave to de-le...
Visvanathan Chetty Vs. Somasundaram Chetty
Court: Chennai
Decided on: Nov-05-1923
Reported in: 78Ind.Cas.407
Krishnan, J.1. In this case the District Munsif has refused to issue a commission to examine the 2nd defendant as his own witness, and the revision is against that order. The learned Munsif dismissed the petitioner's petition rather summarily without noticing the importance of the fact that the defendant was the person applying and without his attention having been drawn to the cases which show in what manner a Court should deal with an application of a defendant to examine himself as a witness on commission as distinguished from an application by a plaintiff. A reference to the case Boss v. Woodford (1894) 1 Ch. 88 : 63 L.J. Ch. 191 : 8 B. 20 : 70 L.T. 22 : 42 W.B. 188 and to the ease Sarat Kumar Boy v. Bam Chandra Chatterji 68 Ind. Cas. 9 : 35 C.L.J. 78; A.I.R.(1922) (Cal.) 42 will show how a defendant's application should be dealt with. In this case a defendant has been a resident of Rangoon with his family for many years. He was served with summons there. The plaintiff himself was ...
Bobba Bhavamma and ors. Vs. Bobba Ramamma and ors.
Court: Chennai
Decided on: Nov-05-1923
Reported in: AIR1924Mad537; 78Ind.Cas.176
1. The plaintiff and the 1st defendant are the widows of one Janakiramiah who died on the 6th of October 1919 at his village Pandithavalloor leaving property of considerable value. The plaintiff claims a partition of the property and delivery to her of a moiety thereof. The 1st defendant resists the suit on the ground that the late Janakiramiah left a Will, and the question to be decided in this suit is whether the document put forward was the last Will of the deceased. The learned Subordinate Judge has come to the conclusion that it was not executed by Janakiramiah and that it was brought into existence by the 1st defendant and others some time subsequent to his death. We have carefully gone into the evidence, and we are satisfied that Janakiramiah did not make the Will in question and that the 1st defendant is bound to fail.2. The learned Vakil for the appellant commented on the judgment and suggested that it did not show that the Subordinate Judge applied his mind to the evidence be...
A.R.P.R. Viswanathan Chety Vs. M.N.M. Somasundaram Chetty
Court: Chennai
Decided on: Nov-05-1923
Reported in: AIR1924Mad541
Krishnan, J.1. In this case the district Munsif has refused to issue a commission to examine the 2nd defendant as his own witness, and the revision is against that order. The learned Munsif; dismissed the petition rather summarily without noticing the importance of the fact that the defendant was the person applying and without his attention having been drawn to the cases which show in what manner a Court should deal with an application of a defendant to examine himself as a witness on commission as distinguished from an application by a plaintiff. A reference to the case of Rose v. Woodford [1894] 1 Ch. 38 and to the case Sara Kumar v. Ram Chandra 1922 Cal. 42 will show how a defendant's application should be dealt, with. In this case a defendant has been a resident of Rangoon with his family for many years. He was served with summons there. The plaintiff himself was a resident of Rangoon and was examined on commission himself there. In these circumstances the defendant should have be...
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