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Tharumal Bhajandas Vs. K. Narasimhiah - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKarnataka High Court
Decided On
Case NumberCivil Revn. Petn. Nos. 233 and 234 of 1952-53
Judge
Reported inAIR1954Kant114; AIR1954Mys114; ILR1953KAR662
ActsDebt Law; Mysore Money-lender's Act, 1939 - Sections 1, 20, 21, 22, 23, 23(2) and 23(3); Code of Civil Procedure (CPC), 1908 - Order 21, Rule 46; Code of Criminal Procedure (CrPC) , 1898
AppellantTharumal Bhajandas
RespondentK. Narasimhiah
Appellant AdvocateM.S. Krishna Iyengar, Adv.
Respondent AdvocateParty in person
Excerpt:
.....41: regular first appeal court fee in appeal - suit for partition and separate possession - payment of court fee of rs.200/-on the plaint under section 35(2) dismissal of suit appealed against - payment of court fee of rs.200/- in the appeal office objection specific finding by the trial court as to ouster of the plaintiff from the suit schedule property whether plaintiff is liable to pay court fee under section 35(1) or under section 35(2) of the karnataka court fees & suits valuation act, 1958 held, merely because the trial court has held that plaintiff is not in possession and has been excluded from possession there will be no change in the court fee payable in the appeal filed by the plaintiff against the decree passed by the trial court . the court fee payable on appeal is..........allowed to the defendant on the view that the attachment was obtained on insufficient grounds. the learned judge also directed the plaintiff to pay a fine of rs. 100/- on the ground that he, as a money-lender, has not conformed to the requirements of the money-lenders' act. against the order for payment of compensation and for payment of fine, these two petitions are filed.2. mr. m. s. krishnaiyangar, the learned counsel for the petitioner-plaintiff, contended, and we think rightly, that the provisions of the moneylenders' act do not confer jurisdiction on courts deciding suits to punish persons who are in default under the act, and that their liability for violation of any of the provisions therein has to be determined in separate proceedings before the criminal court. a reading of.....
Judgment:

Venkata Ramaiya, J.

1. The petitioner in these two cases is the same. He sued the respondent for recovery of amounts due under two on demand promissory notes, and, in the course of one of the suits, applied for attachment before judgment of money due to the defendant under a bill tendered to the Executive Engineer, Buildings Division, Bangalore. No money, however, was received in Court or even found to be actually payable. The suits ended in decrees against the defendant and the application filed by the defendant for payment of compensation on account of the attachment being wrongful was dismissed by the trial Court. On appeal by the defendant, the decrees of the trial Court as regards the amounts payable under the pronotes were confirmed, but compensation of Rs. 250/- was allowed to the defendant on the view that the attachment was obtained on insufficient grounds. The learned Judge also directed the plaintiff to pay a fine of Rs. 100/- on the ground that he, as a money-lender, has not conformed to the requirements of the Money-lenders' Act. Against the order for payment of compensation and for payment of fine, these two petitions are filed.

2. Mr. M. S. Krishnaiyangar, the learned counsel for the petitioner-plaintiff, contended, and we think rightly, that the provisions of the Moneylenders' Act do not confer jurisdiction on Courts deciding suits to punish persons who are in default under the Act, and that their liability for violation of any of the provisions therein has to be determined in separate proceedings before the criminal Court. A reading of Sections 20 to 23 shows that a limit of time is prescribed for prosecuting defaulters and the breach complained of should have occurred within one year. The learned Judge has given no finding that it was so. According to Sub-section (2) of Section 23 the offence under this section shall be a cognizable offence for which a trial is necessary as prescribed under the Criminal Procedure Code to justify a conviction. It seems to us that, without following the statutory provisions, the levy of fine on the plaintiff by the learned District Judge is not warranted. The order for payment of fine is, therefore, set aside and the fine, if paid, will be refunded.

3. As regards payment of compensation, the materials available for consideration are very meagre. The main contention urged on plaintiff's behalf is that no attachment was effected at all, and in the absence of any attachment there can be no claim for compensation. Unfortunately, the point was not raised in the Court below and the records do not throw any light on this. What is required for the purpose of attachment under Civil P. C., (Order 21, Rule 43) is that there should be ft prohibitory order. It is not denied that a prohibitory order was issued, but the argument is that since no money was payable to defendant there was no attachment. No authority is cited to show that service of prohibitory notices as required under Rule 46 of Order 21 is not enough for the purpose of the attachment and that money should have been actually payable at the time to defendant. Since the question was not raised at the proper stage or investigated, it is difficult for us to know the real state of affairs in this case. The contention, if correct, requires that in such eases the Court has to embark on an investigation of the differences between the creditor and debtor and adjudicate upon these. This is not a course contemplated by the rule and not within its scope. The question at present is not whether the service of the prohibitory notices resulted in any benefit to plaintiff but how it affected the defendant. On the footing that there has been an attachment, the only point remaining (or consideration is whether there was justification for it and if not, whether the amount awarded is excessive. The defendant is said to be a contractor, having a reputation in doing business. The learned District Judge has observed that no attempt was made by the plaintiff to substantiate the allegation made in the affidavit. The plaintiff must therefore be deemed to have acted without exercising the care necessary in seeding the extraordinary remedy, not realising the inam which may befall a man of business. Anyway considering that the plaintiff has substantially succeeded in both the suits, the defendant set up false pleas and the defendant is not shown to have suffered tangible loss, I think it would be sufficient to award a sum of Rs. 150/-. To this extent, the amount allowed by the learned District Judge is reduced.

4. In the result, C. R. P. 234/52-53 is allowed and the order in C. R. P. 235/52-53 is modified by substituting the sum of Rs. 150/- for Rs. 250/-. Parties will bear their own costs in this Court.

5. Order accordingly.


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