Chennai Court August 1940 Judgments
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P.S. Poovanalingam Pillai Vs. Nagaratnam Pillai
Court: Chennai
Decided on: Aug-28-1940
Reported in: AIR1940Mad943; (1940)2MLJ575
Wadsworth, J.1. This revision petition arises out of an application under Sections 8 and 19 of Madras Act IV of 1938, to scale down the debt on a decree dated 29th August, 1936, in a promissory note suit. The present petitioner is the decree-holder. The original promissory note was executed on 23rd January, 1924, by the first defendant in favour of the second defendant. On 6th January, 1933, the second defendant endorsed the promissory note to the plaintiff, who sued upon it and got a decree both against the original promisor and the endorser. It was the second defendant (the endorser) who filed the application to scale down the decree.2. The only question raised in revision is whether the debt, so far as the endorser is concerned, was incurred on 23rd January, 1924, the date of the original promissory note in his favour, or on 26th January, 1933, the date of his endorsement to the plaintiff. It is contended on behalf of the applicant (respondent here) that the principle of the decisio...
Ayipuzha Parvathi Amma Vs. Subramanian Pattar
Court: Chennai
Decided on: Aug-28-1940
Reported in: AIR1940Mad944; (1940)2MLJ749
Patanjali Sastri, J.1. This is a petition to revise an order of the Subordinate Judge of Tellicherry dismissing ftie petitioner's application under Section 23 of the Madras Agriculturists Relief Act to set aside an auction sale of certain immovable properties of which she claimed to be the owner.2. The facts of the case may be briefly stated. The respondent obtained a mortgage decree for Rs. 3,083 against the petitioner and others on a mortgage executed in his favour on 6th August, 1931, by one Krishnan Nambi. The mortgage comprised eight items of immovable properties of which he sold items 5 to 8 and part of item 4 under Ex. A and items 1 and 2 under Ex. B, to one Vishnu Nambudri on 9th August, 1931. He also made a gift of item 3 to his daughter, the petitioner herein, on the same date. The petitioner sued Vishnu Nambudri in O.S. No. 464 of 1934 on the file of the District Munsif's Court of Taliparamba for recovery of possession of items 1, 2 and 4 to 8, alleging that these properties...
Peria Karuppan Chettiar Vs. Appaji Naidu and ors.
Court: Chennai
Decided on: Aug-28-1940
Reported in: AIR1941Mad202; (1940)2MLJ786
Patanjali Sastri, J.1. The petitioner obtained a decree against the respondents and other members of their undivided family in O.S. No. 265 of 1935 on the file of the District Munsif's Court of Chingleput for Rs. 2,567-4-0 on a promissory note executed on September 5, 1932, by the respondents Nos. 1 and 2 arid the father of respondent No. 4 who were, brothers. This promissory note was executed for Rs. 1,484 being principal and interest due under an earlier promissory note executed by the father of the fourth respondent with two others who were strangers to the family for Rs. 1,000 in favour of the petitioner on August 31, 1929. The respondents applied under Section 19 of the Madras Agriculturists Relief Act to scale down the decree and their contention has been that the promissory note of 1932 should be treated as a renewal of the earlier promissory note of 1929 within the meaning of the explanation to Section 8, notwithstanding that the makers of the two notes were different, and. tha...
Palani Goundan Vs. Muthuswami Goundan Alias Avanashi Goundan
Court: Chennai
Decided on: Aug-26-1940
Reported in: AIR1941Mad52; (1940)2MLJ707
Wadsworth, J.1. The petitioner was the third defendant in a mortgage suit and he applied under Sections 8 and 19 of Madras Act IV of 1938 to scale down the decree. The learned Subordinate Judge has given a decree for the principal amount of the debt with interest at 6 per cent, from 1st October, 1937 and also-for Rs. 1,855-3-0 for costs and has provided that this amount awarded for costs shall carry interest at six per cent, from the date of the decree which is 12th March, 1932. Petitioner seeks to revise this order by applying to the decree for costs the scalring down provisions of the Act so as to cancel the, interest as on 1st October, 1937. There is nothing in the Act which excludes from the scaling down operation interest on costs. The principal sections dealing with costs are Sections 11 and 19. Section 11 states that where a debt includes any sum decreed as costs by any Court or sums lawfully expended by a mortgagee or other person in order to preserve the property mortgaged, su...
A. Raghupathi Aiyar Vs. Krishnamachariar and anr.
Court: Chennai
Decided on: Aug-26-1940
Reported in: (1940)2MLJ756
Wadsworth, J.1. The petitioner was the defendant in a -suit on a mortgage and he contended that he was entitled to let in evidence that the mortgage was a renewal of a previous promissory note debt which had ripened into a decree, so as to attract, the operation of Section 8 of Madras Act IV of 1938. The Court below held that he was not entitled to adduce such evidence and it is against that decision tne present revision petition is filed.2. The suit mortgage was in favour of the two sons of Srinivasammal and one of the items of consideration for the mortgage was the discharge of a decree in a suit on a promissory note. The payee under the promissory note and the decree-holder in the promissory note suit was Srinivasammal, the mother of the two mortgagees. The question therefore is whether the decree based on the mortgage deed can be scaled -down on the basis that it is in part a renewal of this promissory note debt. The contention was that Srinivasammal, the payee under the promissory...
Kesavan Chettiar Vs. Pakshi Ramaswami Chettiar and ors.
Court: Chennai
Decided on: Aug-26-1940
Reported in: AIR1941Mad406; (1941)1MLJ116
King, J.1. This appeal raises an interesting point in the law of limitation. It arises out of proceedings taken in execution of the final decree in a mortgage suit, O.S. No. 181 of 1931. That suit was upon two mortgages of 1921, the more important of which was a usufructuary mortgage by the terms of which the mortgagee was put in possession of five shops and permitted to appropriate the total income from the shops in part payment of the interest due to him. The final decree was obtained on 18th September 1933, and on 10th March 1938, i.e., four and half years later, the legal representatives of the mortgagee decree-holder brought the present application for execution. During that period he and they had remained in possession of the shops receiving the income therefrom as before. They rely on Sub-section (2) of Section 20, Limitation Act, to bring their application within time and both the Courts below have held that the application is not barred. The question before me is whether that ...
Palanivel Gounden Vs. Subbaroya Gounden
Court: Chennai
Decided on: Aug-26-1940
Reported in: AIR1941Mad889
Wadsworth, J.1. The petitioner applied under Section 19 of Act 4 of 1938, to scale down the decree and his application was rejected. The grounds for this rejection were two-fold. Firstly it was held that the petitioner could not be regarded as a judgment-debtor, he being impleaded as the vendee of the hypotheca in a mortgage suit. This decision cannot be upheld having regard to the decision of the bench in : AIR1939Mad186 , Perianna v. Sellappa. The second ground on which the application was rejected is that the liability which the petitioner seeks to scale down is one in respect of which there is a charge under Section 55 (4)(b), T.P. Act, and that therefore by Section 10 (2)(ii) of Madras Act 4 of 1938, the debt cannot be scaled down. This contention must be negatived, having regard to our decision in o. n. p. No. 602 of 1939 Reported in : AIR1941Mad59 , Doroikannu Odayar v. Veeraswami Padayachi . The liability to the decree-holder is not the same as the liability to the mortgagor in...
M.J. Kutinha Vs. Mrs. Nathalal Pinto Bai and anr.
Court: Chennai
Decided on: Aug-23-1940
Reported in: AIR1941Mad272; (1940)2MLJ780
Horwill, J.1. The Attavar Panchayat Court tried the suit with which we are concerned on 12th January, 1937, in the presence of both parties and adjourned it to 14th January, 1937 for further evidence. The plaintiff was then absent; but instead of dismissing the suit for default, as it should have done under Section 32, it purported to dispose of the suit on, the merits. The plaintiff later filed a petition before the Kadiri Panchayat Court, which had succeeded to the jurisdiction of the Attavar Panchayat Court, to set aside the decree of the Attavar Panchayat Court passed in default. In an elaborate judgment the Kadiri Panchayat Court held that the plaintiff had had good cause for non-appearance and set aside the decree and restored the suit. The defendants thereupon filed an application before the Principal District Munsif of Mangalore to have this order quashed as being without jurisdiction. The learned Munsif. held that the order restoring the suit was without jurisdiction and there...
The Official Receiver Vs. Amara Seshayya and ors.
Court: Chennai
Decided on: Aug-23-1940
Reported in: AIR1941Mad262; (1940)2MLJ860
Burn, J.1. This appeal and this revision petition are brought against the order passed by the learned Subordinate Judge of Guntur in E.P. No. 84 of 1937 in O.S. No. 34 of 1931. The E.P. Was dated 1st March, 1937. The suit had been decreed on the 14th December, 1931, against ninth defendant for a sum of Rs. 23,741-1-2 with interest and costs. It was alleged in the E.P. that certain sums had been recovered in execution in 1936 and 1937 and that an amount of Rs. 30,582 plus further interest and costs was still due. The prayer in the E.P. was for execution against five defendants impleaded in the E.P. as supplemental defendants 10 to 14. The supplemental tenth defendant is the Official Receiver of Guntur and defendants 11 to 14 are said to be the minor undivided sons of K. Venkatasubba Rao the eighth defendant in the suit. K. Venkatasubba Rao had been adjudicated insolvent in I.P. No. 74 of 1931 and certain items of the joint family property had been sold by the Official Receiver for a sum...
Chinna Goundan and anr. Vs. Kalyanasundaram Aiyar and ors.
Court: Chennai
Decided on: Aug-23-1940
Reported in: (1940)2MLJ881
King, J.1. The appellants in this appeal are the judgment-debtors and the respondent is the holder of a decree which was obtained in 1922 and finally confirmed by the High Court in L.P.A. on 26th January, 1934. The decree is for the eviction of the appellants.2. The appellants contended in the Courts below that the execution application could not be permitted, as, owing to the recent amendment of the Estates Land Act, they had acquired occupancy rights. This contention was upheld by the learned District Munsif, but on appeal, the learned District Judge of Salem has a owed execution to proceed.3. There appears to have been some dispute in the Court of the District Munsif as to whether the land which is the subject-matter of this appeal was or was not part of an estate, as now defined by the Act. However, the respondent, who was the appellant before the learned District Judge, and against whom the District Munsif decided this point, did not raise it in his grounds of appeal and I need no...
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