Chennai Court August 1923 Judgments
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Nadapena Appanna and ors. Vs. Saripilli Venkatasami and ors.
Court: Chennai
Decided on: Aug-21-1923
Reported in: (1924)ILR47Mad203
Ramesam, J.1. The facts are stated by my learned brothers. It is sufficient to add that defendants 1 to 4 represent the original mortgagee who is dead and defendants 5 to 8 are their relations and friends who got into possession of the suit property within 12 years prior to suit.2. It is true that the unregistered deed of mortgage mentioned in the plaint is inadmissible in evidence to prove the mortgage. It is also true that a mortgage of immovable property to secure a sum of Rs. 100 or upwards cannot be created otherwise than by a registered deed. There is therefore no mortgage of 1902 to redeem.3. But it does not follow that there was not, at the date of plaint, the relation of mortgagor and mortgagee between the plaintiff and defendants 1 to 4. It is a too narrow reading of the plaint which is a bare narration of the facts, to construe it as seeking to redeem only a mortgage of 1902 and no other. The decision in Krishna Pillai v. Rangasami Pillai I.L.R. (1895) Mad. 462 does not appl...
Mahammad Shamgoya Rowther Vs. Omandu Pillai and ors.
Court: Chennai
Decided on: Aug-21-1923
Reported in: 76Ind.Cas.76
1. The plaintiff is a lessee, who in this suit claimed mesne profits from the defendant, who had kept him out of possession and had obtained the order of a Magistrate under Section 145 of the Code of Criminal Procedure confirming his possesion 'until evicted in due course of law.'2. The District Munsif dismissed the suit because the plaint did not contain a prayer for possession. The plaintiff's lease was a short one for three years and he did not want possession at the time of instituting his suit. The District Munsif held that it was necessary that the Magistrate's order should be vacated and that this could only be done in a suit for ejectment.3. The Subordinate Judge held that it was not necessary that the Magistrate's order should be vacated or that the plaintiff should bring a suit to recover the property.4. We agree with him. Section 145, Clause (6), of the Code of Criminal Procedure declares in what terms the order of a Magistrate proceeding under this provision of law should r...
Chintalapalli Chinna Dorayya Vs. Chintalapalli Venkanna and ors.
Court: Chennai
Decided on: Aug-21-1923
Reported in: 76Ind.Cas.502
1. On the authority of Shavaksha Dinsha Davar v. Tyab Haji Ayub 37 Ind. Cas. 140 : 40 B. 386 : 18 Bom. L.R. 559, which was followed in Dekari Tea Co, Limited, v. Assam Bengal Railway Company 61 Ind. Cas. 919 : 25 C.W.N. 127, it is argued that Section 89, Civil Procedure Code, precludes the application of Order XXIII, Rule 3 to cases in which there has been a reference to arbitration.2. But, as was pointed out by Macleod, C.J., in Manilal Motilal v. Gokaldas Rowji 59 Ind. Cas. 53 : 45 B. 245 : 22 Bom. L.R. 1048, a decision which overruled that learned Judge's earlier decision in Shavaksha Dinsha Dxvar v. Tyab Haji Ayub 37 Ind. Cas. 140 : 40 B. 386 : 18 Bom. L.R. 559, When the terms of the adjustment have been settled by an arbitration and award out of Court the parties may agree to ask for a consent decree. In such a case, the true position appears to be that the Court will not look at the arbitration proceedings, but only at the consent terms, as it makes no difference whether those te...
Lakshmana Aiyengar Vs. Narayana Aiyengar
Court: Chennai
Decided on: Aug-21-1923
Reported in: 76Ind.Cas.786
Hughes, J.1. Defendants Nos. 1 and 2 mortgaged the suit properties in favour of plaintiff under a usufructuary mortgage deed, in which however no reference was made to the fact that the lands were security for a loan taken by defendants Nos. 1 and 2 from Government. The plaintiff paid off various instalments due for the Government loan and sued for the amount so paid. He asked for personal decree against defendants Nos. 1 and 2 and also against the third defendant who was a subsequent purchaser. Judgment was pronounced on 29th January 1921 and was to the effect that a decree would be passed in favour of the plaintiff as prayed for in the plaint. Accordingly, a decree was drawn up making third defendant also personally liable.2. It is now admitted by plaintiff that third defendant should not have been made personally liable.3. Warrant to arrest third defendant was issued and third defendant states that he only then came to know of the wrong direction in the decree and on 10th September ...
Lakshmana Iyengar Vs. Narayana Iyengar
Court: Chennai
Decided on: Aug-21-1923
Reported in: AIR1924Mad225
Hughes, J.1. Defendants 1 and 2 mortgaged the suit properties in favour of plaintiff under a usufructuary mortgage deed, in which however no reference was made to the fact that the lands were security for a loan taken by defendant 1 and 2 from Government. The plaintiff paid off various instalments due for the Government loan and sued for the amount so paid. He asked for a personal decree against defendants 1 and 2 and also against 3rd defendant who was a subsequent purchaser. Judgment was pronounced on 29th January, 1921 and was to the effect that a decree would be passed in favour of the plaintiff as prayed for in the plaint. Accordingly decree was drawn up making 3rd defendant also personally liable.2. It is now admitted by plaintiff that 3rd defendant should not have been made personally liable.3. Warrant to arrest 3rd defendant was issued and 3rd defendant states that he only then came, to know of the wrong direction in the decree and on 10th September, 1921, he applied in the cour...
Md. Shamsgoya Rowther Vs. Omandu Pillai and ors.
Court: Chennai
Decided on: Aug-21-1923
Reported in: AIR1924Mad224
1. The plaintiff is a lessee, who in this suit claimed mesne profits from the defendant, who had kept him out of possession and had obtained the order of a Magistrate under Section 145 of the Code of Criminal Procedure, confirming his possession 'until evicted in due course of law'.2. The District Munsif dismissed the suit, because the plaint did not contain a prayer for possession. The plaintiff's lease was a short one for 3 years, and he did not want possession at the time of instituting his suit. The District Munsif held that it was necessary that the Magistrate's order should be vacated and that this could only be done in a suit for ejectment.3. The Subordinate Judge held that it was not necessary that the Magistrate's order should be vacated, or that the plaintiff should bring a suit to recover the property.4. We agree with him. Section 145 Clause 6 of the Code of Criminal Procedure declares in what tertas the order of a Magistrate proceeding under this provision of law should run...
Thirumurthy Chetty Vs. Ponnan Chetty
Court: Chennai
Decided on: Aug-21-1923
Reported in: AIR1924Mad485
1. This is a suit to recover money payable under an award. It is cognizable by a Court of Small Causes Vide Simpson v. McMaster (1890) 13 Mad. 344 and Mizaji Lal v. Partab Kunwar (1919) 42 All. 169. No second appeal lies and therefore this Civil Miscellaneous Appeal must be dismissed with costs.2. The appellant's pleader has quoted the authority of Kunja Behary Bardhan v. Gost Behary Bardhan 22 C.W.N. 66. The suit there dealt with involved the partition of immoveable property and the award could not be enforced piecemeal by giving the plaintiff a decree for a sum of money which was also due under the award.3. There is a remark in that judgment that a suit for enforcement of an award is in essence, a suit for specific performance of a contract. But a suit for the recovery of money as this is can in no sense be treated as a suit to enforce a contract. Moreover, the observation that a suit to enforce an award and a suit to enforce a contract are practically the same is opposed to the view...
In Re: an Advocate of the High Court
Court: Chennai
Decided on: Aug-20-1923
Reported in: AIR1924Mad265; 76Ind.Cas.873; (1923)45MLJ639
Walter Salis Schwabe, K.C., C.J.1. Mr. M.A. was called to the Bar by the Hon'bje Society of Lincoln's Inn in January, 1913. He was admitted as an Advocate of this Court under the which includes among the qualifications for such admission a call to the Bar in England. After his call to the Bar he remained in England for sometime and practised there. Unfortunately he became involved in matrimonial disputes arising out of his relations with two English ladies, one of whom he married and with the other of whom he went through a form of marriage. According to him it was valid under the Muhammadan Law, but it was clearly invalid according to the law of England. It was alleged by the first of these ladies that he ill-treated and deserted her, and she in some way having got into communication with the Editor of a Newspaper, one Horatio Bottomley, the latter published a series of articles reflecting seriously on the character of M.A. He brought and himself conducted an action for libel based on...
Anglo-persian Oil Company, Limited by their Agents Shaw Wallace and Co ...
Court: Chennai
Decided on: Aug-20-1923
Reported in: (1923)45MLJ653
Walter Salis Schwabe, K.C., C.J.1. This is an interlocutory appeal from the order of Kumaraswami Sastri, J. refusing to stay an action on an application made under the Arbitration Act, the suit being on a contract which contains an arbitration clause referring any question or dispute which may arise under the contract to two European merchants resident in Madras and in the event of their disagreeing to an umpire chosen by the arbitrators before commencing the reference.2. The view expressed by the learned judge in his judgment is that as the defendants had been threatened with legal proceedings for a considerable time and had not then called the attention of the plaintiffs to the arbitration clause or said that they were willing to refer to arbitration and objected to the litigation, that is a ground for refusing to stay on an application on the part of the defendants after the action was brought. I do not agree. There is no authority in support of the proposition which has been adduce...
Anglo-persian Oil Company Limited Vs. P.S. Panchapakesa Aiyar
Court: Chennai
Decided on: Aug-20-1923
Reported in: AIR1924Mad336; (1924)ILR47Mad164
Walter Salis Schwabe, Kt., K.C., C.J.1. This is an interlocutory appeal from the order of Kumaraswami Sastri, J., refusing to stay an action on an application made under the Arbitration Act, the suit being on a contract which contains an arbitration clause referring any question or dispute which may arise under the contract to two European merchants resident in Madras and in the event of their disagreeing to an umpire chosen by the arbitrators before commencing the reference.2. The view expressed by the learned Judge in his judgment is that the defendants had been threatened with legal proceedings for a considerable time and had not then called the attention of the plaintiff to the arbitration clause or said that they were willing to refer to arbitration and objected to the litigation, and that it is a ground for refusing to stay on an application on the part of the defendants after the action was brought. I do not agree. There is no authority in support of the proposition which has be...
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