Chennai Court April 1935 Judgments
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Nemmayya Shetty Vs. Nagaraja Shetty and ors.
Court: Chennai
Decided on: Apr-12-1935
Reported in: AIR1935Mad1085; 158Ind.Cas.874
Varadachariar, J.1. This second appeal arises out of a suit brought by the two plaintiffs for recovery of possession of the muli right in the suit property, free from the Court-sale held at the instance of defendant 1 in execution of a decree for costs obtained by defendant 1 against the mother of the plaintiffs, in A.S. Nos. 209 and 229 of 19.13 on the file of the District Court of South Kanara. The plaintiffs and defendants 2, 3 and 4 are the children of the lady against whom the decree for costs was passed, and constitute an Aliyasanthana family. She died shortly after the decree, leaving all these children minors. In the execution proceedings taken by defendant 1 he first proposed certain persons as guardians for the minors and on their declining to act as guardians or not appearing in response to the notice, defendant 1 applied in R.E.P. No. 275 of 1917 to have an officer of the Court appointed as guardian of these minors for the purpose of the execution sale. The Deputy Nazir was...
Haji Jamal Noor Mahomed Sait Vs. A. Anandaraya Mudaliar and Company
Court: Chennai
Decided on: Apr-11-1935
Reported in: AIR1935Mad791; 158Ind.Cas.546; (1935)69MLJ483
1. This is an appeal from an order of the learned Judge sitting on the Original Side made in chambers excusing the delay in lodging the bill of costs in Court and getting the costs taxed. The respondents are the assignees of a decree passed in a counter-claim. They got the assignment by deed on 4th August, 1926. On 6th August, 1926 they gave a vakalath to Mr. P. Thiruvengadaswami Mudaliar and on 6th August, 1926 that Gentleman put in an application for search of the records stating that he was entitled to the benefit of the decree. On 23rd July, 1927 an application for execution of the decree on the counter-claim was made by the respondents and in the costs column it was settled that the costs were not yet taxed and the right to recover them was reserved until later. It should be noticed that by that time specified in the rules for presenting a bill of costs, namely, 3 months had already expired, that is to say, taking it from the date of the original side decree. There was an appeal f...
Soma Pursa and ors. Vs. Narayana Bhatta and ors.
Court: Chennai
Decided on: Apr-10-1935
Reported in: AIR1935Mad1045; 159Ind.Cas.1034; (1935)69MLJ760
Horace Owen Compton Beasley, Kt., C.J.1. Under Ex. A which is a hypothecation bond, a sum of Rs. 3,500 was expressed to be advanced by the mortgagee to the mortgagors. An amount of Rs. 855 was, however, agreed to be left with the mortgagee on condition that the mortgagee would pay that amount within a month to the first mortgagor together with interest thereon at nine per cent, per annum from the date of the instrument to the date of payment. The mortgagors agreed to pay interest at nine per cent, per annum on the full amount of Rs. 3,500 although they were not to receive Rs. 855 until later from the date of the hypothecation bond for one year and eight per cent, thereafter. The first mortgagor assigned the Rs. 855, before-mentioned to the plaintiff who sought to recover that amount with interest from the defendants whose mother was the mortgagee. The learned Subordinate Judge held that the amount claimed had become a debt owing by the mortgagee to the firt mortgagor which was intended...
Maddali Machamma Vs. Chaparala Kanakamma
Court: Chennai
Decided on: Apr-10-1935
Reported in: AIR1935Mad923; 158Ind.Cas.406
Varadachariar, J.1. The only point for determination in this Second appeal is whether the suit is barred by Section 47, Civil P.C. The plaintiff is the widow of the defendant in O.S. No. 16 of 1915, on the file of the Bundar Sub Court; and as the defendant died before execution was completed, she was added as his L.R. When the creditor attached certain properties as belonging to the deceased husband of the plaintiff, she filed an application (S.A. No. 252 of 1930, claiming that the attached property belonged to her under a sale deed of 1896. This application purported to be filed both under Order 21, Rule 58, and under Section 47, Civil P.C. It is fairly well settled that when a person, who has been impleaded as the L.R. of a defendant or a judgment-debtor claims that certain properties attached as the property of the judgment-debtor are his own, his remedy is by an application under Section 47 and not by an application under Order 21, Rule 58; but to avoid any possible objection, E.A....
M.V. Marula Sidhayya Vs. Gadigi Muddappa
Court: Chennai
Decided on: Apr-10-1935
Reported in: AIR1935Mad929; 158Ind.Cas.5
King, J.1. The appellant here was a creditor of three brothers who were adjudicated insolvents in I.P. No. 18 of 1922, on the file of the District Court of Bellary, In October 1924 a proposal for a composition in satisfaction of the insolvents' debts was submitted to the Court under Section 38, Provincial Insolvency Act. The terms of the composition were that two sureties bound themselves to pay the creditors a dividend at five annas in the rupee, and were to be empowered to reimburse themselves out of the insolvents' estate. A first charge over the entire estate with the exception of a house and a shop was to be given to the sureties. This proposal was approved by the Court in March 1925 and under Section 39 the adjudication was annulled. A list of creditors prepared by a vakil was declared to be the 'schedule' of creditors, and the sureties were asked to give notice to such of those creditors as had not yet proved their debts. The appellant as one of these creditors submitted claims ...
A.M.A. Murugappa Chettiar Vs. S.M.A.M. Ramasami Chettiar and ors.
Court: Chennai
Decided on: Apr-09-1935
Reported in: AIR1935Mad893; 159Ind.Cas.228
ORDERVenkatasubba Rao, J.1. The question that arises is, whether the respondents are entitled to rateable distribution under Section 73, Civil P.C. The petitioner in execution of his decree brought to sale certain properties and purchased them himself with the leave of the Court under Order 21, Rule 72. The amount due to him under the decree was Rs. 4,000 odd and as the highest bidder he purchased the properties for about Rs. 5,315. This he set off against the decree amount, that is to say he did not deposit any sum in Court. Order 21, Rule 72 provides:(1) No holder of a decree in execution of which property is sold shall, without the express permission of the Court, bid for or purchase the property, and (2) where a decree-holder purchases with such permission, the purchase money and the amount due on the decree may, subject to the provisions of Section 73, be set off against one another, and the Court executing the decree shall enter up satisfaction of the decree in whole or in part a...
Ramanna Chettiar Vs. K. Manickam Chettiar and ors.
Court: Chennai
Decided on: Apr-09-1935
Reported in: AIR1935Mad1011
Varadachariar, J.1. This is a second appeal by the plaintiff mortgagee, against so much of the decree of the Courts below as refused relief to him against the B scheduled properties in the hands of defendants 2 to 4. Under Ex. A, dated 17th August 1919, the father of defendant 1 acting for himself and on behalf of his minor son, the present defendant 1, mortgaged 1 acre 82 cents of lands constituting R.S. No. 199/1. The document makes no reference to his being a member of a joint Hindu family with anybody else except his son nor does it purport to mortgage any Share in joint family property. It merely states that the patta for the morgtgage property stands in the names of himself and others and that the property is in his enjoyment. It however turned out that he had co-parceners and in a partition suit between the co-parceners the 1 mortgagor was allotted only 51 cents in S. No. 199/1. He got other properties for his share and amongst them S. No. 199/2 which adjoins the mortgage prospe...
Sivaji Govinda Rao Mohitay Rao Saheb Vs. N.N.C.T.C.V. Firm by Its Part ...
Court: Chennai
Decided on: Apr-08-1935
Reported in: AIR1935Mad815; 158Ind.Cas.170; (1935)69MLJ264
King, J.1. The appellant in this case mortgaged all his properties to a usufructuary mortgagee in 1918, and as one of the terms of that transaction is entitled to receive from him an allowance of Rs. 100 a month. He claims that this allowance, which he says is subject to a very large deduction on account of rent due to the mortgagee is paid to him specifically for his maintenance and is his sole means of support. In E.P. No. 242 of 1932 a creditor of the appellant sought to attach his right to the allowance. Appellant contended that it was exempt from attachment under Section 60(n), Civil Procedure Code. The first Court upheld this contention but on appeal the learned District Judge rejected it and ordered execution to proceed.2. The determination of this question depends upon the meaning of the expression 'right to future maintenance'. In its primary sense that expression means simply the right of one person to receive from another board, lodging, clothing and the other necessaries of...
Thayammal Vs. Subramania Gurukkal and ors.
Court: Chennai
Decided on: Apr-08-1935
Reported in: (1935)69MLJ850
Varadachariar, J.1. This Second Appeal arises out of a suit brought to set aside a rent sale under the Estates Land Act. The plaintiffs are admittedly entitled to a one-fourth share in the holding, defendants 1 to 3 being entitled to the remaining shares. It is not necessary for the purpose of this Second Appeal to decide what exactly the arrangement was between plaintiffs and defendants 1 to 3 as to the way in which they should pay the rent due to their landlord, during the time that the lease, Ex-A, was in force and who as between them was really liable to pay the amount for the year in respect of which the rent sale took place. Defendants 1 and 2 admit that they were personally served with the notice of sale. Beyond filing a written statement jointly with defendants 1 and 2, the 3rd defendant has put forward no specific case. Both the lower Courts have found that the plaintiffs were not served with notices of the sale and no attempt was made to serve them personally. They even go fu...
Kush Dan Khan Kabuli Vs. Official Assignee
Court: Chennai
Decided on: Apr-08-1935
Reported in: AIR1936Mad21
ORDERMockett, J.1. This is an appeal from an order passed by the Official Assignee. The official Assignee ruled that a sum of Rs. 900, admittedly the appellant's money, which at the date of the insolvency was in the hands of the insolvent, could be regarded as an unsecured claim only. The appellant's case is that this money was the subject of a trust and under Section 52, Presidency Towns Insolvency Act, was not divisible among the creditors. Several authorities have been cited before me. These naturally have been of assistance, but in this case there is not in my view any question of principle involved which has not been clearly dealt with by this High Court and the Privy Council. All I have to do is to ascertain the facts and to apply to them the principle of law applicable. In this case it is most important to consider what exactly happened in the proceedings previous to this appeal. The Official Assignee was appointed interim receiver on 8th January 1934 and the insolvent firm were...
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