Court : Chennai
Reported in : AIR1930Mad197
Wallace, J.1. This second appeal is against the decision of the lower appellate Court in the matter of a promissory note claim. The promissory note dated 9th June 1920 was executed by defendant 1 in favour of plaintiff 1 on behalf of the joint family of which he was the manager. In a partition suit decree, this promissory note was allotted to the share of one Balkrishnayya although the promissory note appears to have remained with plaintiff 1. On 14th September 1922, Balkrishnayya executed a release deed relinquishing his rights in the suit note in favour of both the plaintiffs. Both the plaintiffs filed this suit to recover the full amount due upon the note. The defence pleaded was a discharge to Balakrishnayya partly by cash and partly by execution of another promissory note. The trial Court held that the payment pleaded by the defendants was true but that it was not binding on the plaintiffs. The lower appellate Court agreed in holding that the payment was true but held further that...
Tag this Judgment!Court : Chennai
Reported in : 122Ind.Cas.345
Wallace, J.1. This second appeal is against the decision of the lower Appellate Court in the matter of a promissory note claim. The promissory note dated the 9th June, 1920, was executed by the 1st defendant in favour of the 1st plaintiff on behalf of the joint family of which he was the manager. In a partition suit decree, this promissory note was allotted to the share of one Balakrishnayya, although the promissory note appears to have remained with the 1st plaintiff. On the 14th September, 1922, Balakrishnayya executed a release deed relinquishing his rights in the suit note in favour of both the plaintiffs. Both the plaintiffs filed this suit to recover the full amount due upon the note. The defence was a discharge to Balakrishayya partly by cash and partly by execution of another promissory note. The trial Court held that the payment pleaded by the defendants was true but that it was not binding on the plaintiffs. The lower Appellate Court agreed in holding that the payment was tru...
Tag this Judgment!Court : Chennai
Reported in : AIR1931Mad369
Curgenven, J.1. This petition is preferred against an order allowing the plaintiff to amend his plaint. He was a creditor of a firm composed of defendants 1 to 4 and sued them and various members of their family upon the debt, alleging that each of these four defendants was a managing member and therefore that the several family properties were liable. The amendment was sought with reference to the alleged liability of defendants 5, 6, 9 and 10. As regards defendants 5 and 6 the plaintiffs original case was not that they were partners but that after they had attained majority they executed letters undertaking to discharge the debt. As regards defendants 9 and 10 the original allegation was that they were members of a joint family with their father and elder brother, defendant 2, and that the father had agreed to be bound by the debt and therefore that they were under a pious obligation to discharge it. In the case of all these four defendants, (the amendment which it was desired to mak...
Tag this Judgment!Court : Chennai
Reported in : AIR1930Mad222
Venkata subba Rao, J.1. This case raises a point in regard to the applicability of Article 164 Lim. Act. The defendant was served by substituted service and a decree was passed on 20th June 1927 against him ex parte. He applied on 6th March 1928 for the setting aside of that ex parte decree. The question is, does time run from the date of the decree, or from the date when it came to his knowledge?2. Article 164 runs thus:By a defendant, for Thirty days from an order to set aside a the data of the decree,decree passed ex Parte or where the summonswas not duly served, whenthe applicant has knowledgeof the decree.3. Can it be said that in every case where the summons is served by substituted service, the starting point is not the date of the decree but the date when it first comes to his knowledge? To accept such a contention would be equivalent to holding that substituted service is in no circumstances due service. There seems to be no warrant for this position. The Civil Procedure Code ...
Tag this Judgment!Court : Chennai
Reported in : 122Ind.Cas.35
Venkatasubba Rao, J.1. This case raises a point in regard to the applicability of Article 164 of the Limitation Act. The defendant was served by substituted service and a decree was passed on the 20th of June, 1927, against him ex parte. He applied on the 6th of March, 1928, for the setting aside of that ex parte decree. The question is, does time run from the date of the decree, or from the date when it came to his knowledge?2. Article 164 runs thus-'By a defendant, for Thirty days from the date ofan order to set aside the decree or where the summonsa decree passed ex was not duly served, parte, when the applicant has knowledgeof the decree.'3. Can it be said that in every case where the summons is served by substituted service, the starting point is not the date of the decree but the date when it first comes to his knowledge? To accept such a contention would be equivalent to holding that substituted service is in no circumstances due service. There seems to be no warrant for this po...
Tag this Judgment!Court : Chennai
Reported in : AIR1930Mad20; (1929)57MLJ718
Curgenven, J.1. This Civil Revision Petition was presented in the following circumstances. The plaintiff, now respondent, obtained a preliminary mortgage decree against the petitioner, and applied in M.P. No. 279 of 1927 to have a final decree passed. The defendants were given notice and alleged that the decree debt had been adjusted. This issue was tried by the Subordinate Judge of Chingleput and found against, so that he directed that a final decree should be drawn up. The petitioners took this order on appeal to the District Court, stamping it as though for a Miscellaneous Appeal. The learned District Judge took up the matter of the sufficiency of the Court-fee and passed an order in which he says that the appeal was clearly against the final decree in the mortgage suit and accordingly that an ad valorem Court-fee should be paid. The petitioners now object to the terms of this order.2. The question thus is, whether an appeal against an order directing after contest that a final decr...
Tag this Judgment!Court : Chennai
Reported in : AIR1930Mad577; (1930)58MLJ318
Madhavan Nair, J.1. This appeal arises out of an application under Sections 144 and 151, Civil Procedure Code, for restitution against the 3rd respondent in A.S. No. 256 of 1924 before this Court and also for the recovery of costs that were ordered to be paid by the claimants 1 and 2 in the two connected appeals, Nos. 256 of 1924 and 324 of 1924. The facts of the case are stated in detail by the learned District judge and need not be re-stated.2. It appears that a sum of Rs. 22,614-12-0 was ordered to be paid in excess by the District Judge to the claimants in a certain land acquisition proceeding on a reference to him under the Land Acquisition Act. Against the order to pay the excess amount two appeals were preferred to the High Court, one, A.S. No. 324 of 1924, by the claimants in that proceeding and another, A.S. No. 256 of 1924, by the Government. In A.S. No. 256 of 1924 the Government filed an application for stay of execution of the order that the 3rd respondent may be al-lowed ...
Tag this Judgment!Court : Chennai
Reported in : AIR1930Mad410
Curgenven, J.1. The question arising in this case is whether the word 'adjustment' in 0. 21, Rule 2, Civil P.C., embraces an agreement to discharge the decree which the parties have still to carry out. The respondent had obtained a mortgage decree and the mortgaged property had been sold under it. While the sale was awaiting confirmation, the appellant here, who was the judgment-debtor, having filed a petition under 'O. 2l Rule 90, the parties put in a joint statement to the effect that a compromise was impending and a few days later the appellant filed another petition in which he alleged that the respondent had agreed to an arrangement whereby the auctioned property should be conveyed to him for a sum of Rs. 2,600 on condition that he should reconvey it in one year at the price of Rs. 2,750, and that the further balance due under the decree debt should be discharged by the sale of other property by the judgment-debtor to a third person who was to give a promissory note for Rs. 900 to...
Tag this Judgment!Court : Chennai
Reported in : 123Ind.Cas.47
Madhavan Nair, J.1. This appeal arises out of an application under Sections 144 and 151, Civil Procedure Code, for restitution against the 3rd respondent in A.S. No. 256 of 1924 before this Court and also for the recovery of costs that were ordered to be paid by the claimants Nos. 1 and 2 in the two connected appeals, Nos. 256 of 1924 and 334 of 1924. The facts of the case are stated in detail by the learned District Judge and need not be re-stated.2. It appears that a sum of Rs. 22,614-12-0 was ordered to be paid in excess by the District Judge to the claimants in a certain land acquisition proceeding on a reference to him under the Land Acquisition Act. Against the order to pay the excess amount two appeals were preferred to the High Court, one A.S. No. 324 of 1924 by the claimants in that proceedings, and another, A.S. No. 256 of 1924 by the Government. In A.S. No. 256 of 1924, the Government filed an application for stay of execution of the order that the 3rd respondent may be allo...
Tag this Judgment!Court : Chennai
Reported in : (1930)58MLJ107
Wallace, J.1. The question for decision in this second appeal is whether the plaintiff has a right to sue. The plaintiff 's the Union Board of Devakotta and sties to have it declared that the decision of the Survey Department that a certain plot of ground is the property of the defendant and is not public-road vested in the plaintiff is a wrong decision, and for consequential reliefs. Both the Lower Courts dismissed the suit on the ground that the plaintiff has no loans standi to maintain it and the plaintiff appeals.2. The decision of the Survey Officer was on the 12th May, 1920. The plaint was presented on the 6th June, 1921 and is in time, but the ground for the Lower Courts' decision is that on the date of the plaint there was no Union Board validly constituted in which the right of action vested, and therefore no Union Board which could validly maintain the suit. The party who represented before the Survey Officer the claim of the public to the plot was the Taluq Board. The questi...
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