Chennai Court September 1926 Judgments
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V. Venuswami Iyengar and anr. Vs. K. Varadaraja Iyer and ors.
Court: Chennai
Decided on: Sep-23-1926
Reported in: AIR1927Mad511; 100Ind.Cas.440
Srinivasa Iyengar, J.1. This is an application for an order that the 2nd plaintiff, the Official Assignee, should be directed to furnish security for the costs of the suit of the 6th defendant. The 6th defendant claims to be the receiver appointed for the 1st defendant on his insolvency in the Dindigul Sub-Court. The only provision of law under which such orders for security can be made is Rule 8 of Order 22, Civil Procedure Code. The rule is to the effect that no suit shall abate simply because of the insolvency of the plaintiff unless one of two things happens, that is, unless such assignee or receiver declines to continue the suit or (unless for any special reason the Court otherwise directs) to give security for the costs thereof within such times as the Court may direct. Clause 2 of that rule deals with the consequences of the failure on the part of the assignee to furnish the security. Under Clause 1 it is perfectly clear that the security required to be furnished by the Official...
(Katikavani) Venkataramanayya and ors. Vs. Secretary of State
Court: Chennai
Decided on: Sep-23-1926
Reported in: AIR1927Mad1131
Devadoss, J.1. The only question in this appeal is whether the plaintiff's claim is barred by reason of the decision in O. S. 119 of 1914. The learned District Judge has held that the plaintiff's suit is barred by res judicata by reason of the decision in the previous suit. It is urged by Mr. Venkatarayaliah that the decision in O. S. 119 of 1914 does not restrict the right to 163-93 acres and that even if it be held to have restricted the right to that extent, it was unnecessary for the decision in that case to have so restricted it and therefore such decision cannot operate as res judicata in the subsequent suit. In the plaint in the previous suit the plaintiffs claimed the right to irrigate all their wet lands, whatever the extent thereof might be (vide para. 7 of the plaint) and prayed that their right to the use of the Ogeru water free of charge for the irrigation of all their wet lands, whatever the extent, thereof may be, by means of the irrigation works now maintained by them, ...
In Re: P. Natesa Mudaliar
Court: Chennai
Decided on: Sep-22-1926
Reported in: AIR1927Mad156; (1926)51MLJ704
1. The appellant has been convicted of erecting without the permission of the Commissioner of the Madras Municipal Corporation machinery by the use of which smell, noise, vibration, etc., are produced. This is an offence by virtue of Sections 288 and 357 and Scheduel VII of the Act. Admittedly he has put up an electric motor-driving mill and the evidence shows that this machinery emits disagreeable odours and produces considerable noise.2. It is contended first that this is not machinery. This contention deserves no consideration.3. Next, it is urged that the appellant had only substituted this motor for an oil engine for which he had taken out permission. But even so, it is obvious that he had erected this machinery.4. Finally, it is urged that the machinery is not a nuisance. But that is no defence to the case. The wording of Section 288 is plain that the question whether the machinery is or is not a nuisance is one for the Commissioner alone, and if he finds that it is a nuisance he...
Alamuri Punniah Vs. Sagarajee Kasarmal Firm Tenal and ors.
Court: Chennai
Decided on: Sep-22-1926
Reported in: AIR1927Mad124; (1926)51MLJ712
1. This appeal arises out of a petition filed by a creditor to adjudge respondents 1 and 2 insolvents. The 2nd respondent is the son-in-law of the rst respondent.2. The main contention put forward on behalf of the appellant here (who was the 2nd respondent in the Lower Court) is that a single petition for adjudicating both the respondents as insolvents is bad for misjoinder, and therefore unsustainable. There is no doubt that they are liable to the petitioner for a joint debt. The learned District Judge has also found upon the evidence on record that they are also partners. That finding has been challenged before us but we are satisfied that the inference drawn by the learned Judge is on the whole correct. Each link in the chain of circumstances adverted to by him may be inconclusive by itself, but the cumulative effect of all the links justifies his conclusion. We are not prepared to differ from him on this point. It is, however, contended by Mr. Satyanarayana that a single petition a...
(Pulipaty) Subbayya Vs. Kandi Subba Reddi and ors.
Court: Chennai
Decided on: Sep-22-1926
Reported in: AIR1927Mad648
Odgers, J.1. It is contended that there can be a partial raising of an attachment by consent of parties outside the Court. This cannot be so; Court must raise the attachment unless it becomes inoperative by the payment of the decree debt (vide Kunhi Moosa v. Makki [1900] 23 Mad. 478 There is no force in the plea that the attachment was raised by the agreement Ex. B. Nothing is said about it and if there were, it would need an application to and an order of Court. Next the argument as to Section 61 of the Code of Civil Procedure. No authority has been shown to me against the view taken by the learned District Judge. The section appears to me to be absolute. If a sale by consent or with the connivance of the decree-holder were to be excepted the section would no doubt have said so.2. The Second Appeal is dismissed with costs....
In Re: C. Subramanian Chetty and Sons
Court: Chennai
Decided on: Sep-22-1926
Reported in: AIR1926Mad1166
ORDERBeasley, J.1. This is an application for the sanction of a compromise approved at the meeting of the creditors held on the 26th April 1926. Without going any further into this application, it appears that the insolvent has made payments himself to the creditors before the meeting of the creditors at which the com-' position was approved. I have said before and repeat it now that payments made by insolvents behind the back of the Official Assignee or payments made by persons on behalf of the insolvent in this manner are entirely irregular and I have been caused a great deal 'of trouble in the past in consequence of this irregular procedure. No insolvent or anybody on his behalf has any right whatever to make any payments at all to creditors. The insolvent's estate vests in the Official Assignee and the only person who can discharge debts of the insolvent is the Official Assignee. This fact having come to my notice on this application I shall adjourn it and refuse to sanction the co...
Pulipaty Subbayya Vs. Kandi Subbareddi and ors.
Court: Chennai
Decided on: Sep-22-1926
Reported in: 101Ind.Cas.591
Odgers, J.1. It is contended that there can be a partial raising of an attachment by consent of parties outside the Court, This cannot be so; Court must raise the attachment unless it becomes inoperative by the payment of the decree [vide, Kunhi Moossa v. Makki 23 M. 478 : 10 M.L.J. 98 : 8 Ind. Dec. (N.S.)]. There is no force in the plea that the attachment was raised by the agreement Ex. B. Nothing is said about it and if there were, it would need an application to, and an order of, the Court, Next the argument as to Section 64 of the Code of Civil Procedure. No authority has been shown to me against the view taken by the learned District Judge. The section appears to me to be absolute. If a sale by consent or with connivance of the decree-holder were to be excepted the section would, no doubt, have said so.2. The second appeal is dismissed with costs....
Doradla Subbayya Setty and ors. Vs. Alapati Syamaladoss and ors.
Court: Chennai
Decided on: Sep-21-1926
Reported in: AIR1927Mad178
Jackson, J.1. The order of the District Munsif sought to be reveled is correct. When the decree was passed it was not certain whether a compromise decree could extend beyond the subject matter of the suit Muthu Vijaya Raghunatha Udayana Tevar v. Thandavaraya Thmbiran, [1899] 22 Mad. 214 Natesa Chetti v. Vengu Nachiar [1909] 33 Mad. 102 and the decree in its present form was no doubt drawn up deliberately after due consideration of law. That opinion on the question has now modified (Ramaswami Naidu v. Subbaraya Tevar A. I. R. 1925 Mad. 1101 is no reason for amending the decree at this late date.2. The petition is dismissed with costs....
Alapati Syamaladoss and ors. Vs. Doradla Subbayya and ors.
Court: Chennai
Decided on: Sep-21-1926
Reported in: AIR1927Mad347; (1927)52MLJ137
Jackson, J.1. Appeal against the order of the Subordinate Judge of Bapatla in A. S. No. 62 of 1923. The appellants are defendants and judgment-debtors in O. S. No. 922 of 1907, District Munsif's Court, Ongole. The respondents filed E. P. No. 789 of 1920 on 4th October 1920, praying that certain property attached before judgment might be sold. Some doubt was expressed whether there had been an attachment before judgment, and it seems that the District Munsif suggested that other property of the defendants should be attached and sold. Accordingly respondents filed E. A. No. 163 on 20th March 1923, praying that the, property said to be under attachment might be attached, and also other property already scheduled in a compromise between the parties.2. The District Munsif held E. A. No. 163 of 1923 to be a petition to amend E. P. No. 189 of 1920; otherwise it would be time-barred under Section 48, Civil P. C. The judgment-debtors appealed, and the learned Subordinate Judge has held that the...
Govindasami Naicker Vs. Perumal Raja and anr.
Court: Chennai
Decided on: Sep-21-1926
Reported in: AIR1927Mad327
Jackson, J.1. Petition to revise the order of the District Judge of West Tanjore in A. S. No. 184 of 1923. Petitioner purchased a house in Court-auction. The 1st counter-petitioner-claiming to be owner, made the deposit under Order 21 of Rule 89, Civil P. C., the cancellation of the sale has been ordered and hence this petition.2. It is first contended that the 1st counter-petitioner is barred by res judicata because he withdrew a claim after the 2nd counter-petitioner took certain oaths. There is no absolute rule of res judicata applying to execution proceedings, and it cannot be held that a man is debarred from defending his action under Rule 89 because he desisted from his action under Rule 58 of Order 21. The petitioner's second point is that the words 'owning such property by virtue of a title acquired before such sale,' cannot apply to an owner whose title is longstanding and not recently derived from the judgmentdebtor. Of course, the language of the section conveys no such limi...
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