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Raman Kunjukrishnan Vs. Raman Viswanathan and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKerala
Decided On
Case NumberS.A. No. 978 of 1960
Judge
Reported inAIR1964Ker314
ActsCode of Civil Procedure (CPC) , 1908 - Sections 2(4), 15 and 65 - Order 21, Rule 90; Travancore Civil Courts Act - Sections 9, 10 and 14
AppellantRaman Kunjukrishnan
RespondentRaman Viswanathan and ors.
Appellant Advocate G. Viswanatha Iyer, Adv.
Respondent Advocate S. Nilakanta Iyer and; P.V. Neelakanta Pillai, Advs.
DispositionAppeal dismissed
Cases ReferredVaradarajan v. Venkatapathi
Excerpt:
.....this is eminently a fit case, for the application of the principle in section 14. as observed the suit as filed in the district court was for administration of the chitty assets and the 15th defendant's only objection related to the court-fee payable. it was complained however, that while presenting the plaint in the munsiffs court, the requisite allegations were not made to bring the case within section 14. when the facts are so patent and clear, the court cannot refuse to apply section 14. see sukhbir singh v. on both these grounds the plea of limitation must fail. there is no doubt a distinction in the exercise of the appellate power, but i do not see why in the absence of compelling authority, the principle of revivor should not apply to a case like the present, where after..........instituted in the munsiff's court on the 25th kanni, 1127, was barred by limitation and that the sale in execution of ext. p-2 decree has never been validly confirmed and has not become absolute so as to vest title in the plaintiff. the suit as field in the district court on the 31st karkadakom, 1125, was one for administration of the chitty assets, and objection was taken by the 15th defendant that proper court-fee had not been paid. the district court went into this and called upon the plaintiff to state his valuation of the suit for the payment of court-fee- and for determining jurisdiction, which it was ordered must be the same. the stated valuation being below rs. 2000/- the plaint was returned and was presented in the munsiff's court.in overruling the plea of limitation, the two.....
Judgment:

S. Velu Pillai, J.

1. This second appeal by the 15th defendant arises in a suit for declaration of title and possession. In a chitty which was conducted by the first defendant as foreman, one Janaki Amma the predecessor-in-interest of the plaintiff, and one Bhargavi the predecessor-in-interest of the defendants 11 to 14, were subscribers. Janaki Amma obtained Ext. P-2 decree against the first defendant for money due to her under the chitty, in execution purchased the property in schedule A which belonged to him on the 14th Makarom 1120, and assigned her rights to the first plaintiff, or the plaintiff shortly, who went into possession on the 31st Mithunam 1122. Bhargavi obtained Ext. P-9 decree against the first defendant for money due to her under the chitty, and in execution by Government for the court-fee payable, a portion of the property in Schedule A, specified as item 4 in Schedule B, was purchased by the 15th defendant who is the appellant here.

The plaintiff's obstruction to the delivery of possession to the 15th defendant was dismissed by order dated the 22nd Thulam, 1125 which was confirmed by the High Court in revision on the 28th Mithunam, 1125. The plaintiff then filed the present suit in the District Court on the 31st Karkadakom, 1125, but on the plaint being returaed, it was presented in the Munsiff's Court on the 25th Kanni, 1127, when more than one year had elapsed even after the order in revision was passed. It was held by the two courts below, that the property in schedule A having been sold earlier in execution of Ext. P-2 decree, and having passed to the plaintiff, no interest remained with the first defendant which could pass to the 15th defendant under the purchase by Mm. The contention that the suit was barred by limitation was overruled and the suit was decreed.

2. The only two points urged in second appeal are, that the suit as instituted in the Munsiff's Court on the 25th Kanni, 1127, was barred by limitation and that the sale in execution of Ext. P-2 decree has never been validly confirmed and has not become absolute so as to vest title in the plaintiff. The suit as field in the District Court on the 31st Karkadakom, 1125, was one for administration of the chitty assets, and objection was taken by the 15th defendant that proper court-fee had not been paid. The District Court went into this and called upon the plaintiff to state his valuation of the suit for the payment of court-fee- and for determining jurisdiction, which it was ordered must be the same. The stated valuation being below Rs. 2000/- the plaint was returned and was presented in the Munsiff's Court.

In overruling the plea of limitation, the two Courts have excluded the period of the pendency of these proceedings by applying Section 14 of the Indian Limitation Act. It appears to me, that another approach is possible, for the District Court in which the plaint was presented was a Court which had jurisdiction to try the suit. Under Section 2 Sub-section (4) of the C. P, C., a District Court is defined as the principal Civil Court of original jurisdiction in the district, and under Section 10 of the Travancore Civil Courts Act, 2 of 1084, which was in force at the time, 'the District Court shall be deemed to be the principal Civil Court of original jurisdiction within the local limits of its jurisdiction.' Section 9 of the same Act also has provided, that 'the jurisdiction of a District Court extends, subject to the Rules contained in the Code of Civil Procedure, to all original suits and proceedings of a civil nature.'

There is nothing in the Code which has taken away the jurisdiction of the District Court to try any original suit within its local limits. Section 15 of the Code has enacted, that 'every suit shall be instituted in the Court of the lowest grade competent to try it', but this is a provision which relates, to the place of suing and does not deprive the District Court of its jurisdiction to try original suits. Similarly it was not and could not be contended, that a decree of the District Court is void, for the reason that the suit in which it was passed was within the pecuniary jurisdiction of the Munsiff's Court. It is a policy of the law of procedure, that suits must be filed in the lowest Court competent to try them. So the plaint as presented on the 31st Karkadakom, 1125 was in a Court with jurisdiction, and the institution of the suit was valid, though no doubt it offended Section 15 of the Code and for that reason was returned for presentation to the proper Court. For the above reasons, the Suit must be deemed to have been validly instituted on the date of the presentation of the plaint in the District Court and no question of limitation would arise.

3. I am also satisfied, that this is eminently a fit case, for the application of the principle in Section 14. As observed the suit as filed in the District Court was for administration of the chitty assets and the 15th defendant's only objection related to the Court-fee payable. This was settled by the order of the District Judge dated the 19th Chingom, 1127. It cannot be said that the suit was not proceeded with diligently during the interval and soon after the plaint was returned pursuant to the order dated the 13th Kanni, 1127, it was presented in the Munsiff's Court. Even if it is a case in which the District Court had no jurisdiction, the elements of Section 14 are present, and following Ittyavira Mathai v. Varkey Varkey, (1963) 2 SCWR 326: (AIR 1964 SC 907) the period may be excluded. It was complained however, that while presenting the plaint in the Munsiffs Court, the requisite allegations were not made to bring the case within Section 14. When the facts are so patent and clear, the Court cannot refuse to apply Section 14. See Sukhbir Singh v. Piara Lal, (AIR 1923 Lah 591) and Lalchand Nathmal Firm v. Firm Balaram Rameshwar, (AIR 1957 MP 95). The 15th defendant who contested the proceedings in the District Court, could not be held to be prejudiced by the want of allegations as to, the prior proceedings and as to the circumstances under which the plaint was re-presented in the Munsiff's Court. On both these grounds the plea of limitation must fail.

4. There was an application under Order XXI, Rule 90, to set aside the Court rate under which the plaintiff claims; this came to be dismissed and the Court thereupon confirmed the sale. It was argued, relying on a copy of the execution diary, Ext. P-3, that in the appeal against the dismissal of the application, the order was set aside, the application was restored to file, and the case remanded to the execution Court. Granting that all this may be inferred from the entries in the execution diary, what happened subsequently has also to be noted. The application to set aside the sale was again dismissed by the execution Court for default on the 18th Mithunam, 1124. There was no further order of confirmation. But the property had been delivered to the first plaintiff in the year 1122. The purchase by the 15th defendant having been on the 15th Thulam, 1123, it depends on whether the sale in execution of Ext. P-2 decree had become absolute before that date.

It was contended that once the application under Order XXI, Rule 90 was restored in appeal and the case was remanded, the prior confirmation of the sale stood automatically vacated, and without a fresh order of confirmation following the dismissal of the application under Order XXI, Rule 90, the sale could not become absolute. Reliance was placed on the decision of the Madras High Court in Varadarajan v. Venkatapathi, (AIR 1953 Mad 587) in which the view was taken, that on the application under Order XXI, Rule 90 being allowed or restored to file, the prior confirmation automatically stood vacated. If in the case noticed, the order of the appellate Court restoring the application was taken on further appeal and, the order of the appellate Court was reversed and the application was dismissed, certainly the earlier confirmation would stand revived.

There is no doubt a distinction in the exercise of the appellate power, but I do not see why in the absence of compelling authority, the principle of revivor should not apply to a case like the present, where after restoration of the application it was again dismissed. It is needless to go through the meaningless formality of passing a fresh order of confirmation. The principle of revivor would serve also to advance the interests of justice. I therefore come to the conclusion, that the original order of confirmation, even if it was automatically vacated on the passing of the appellate order, stood revived, and the sale became absolute. By Section 65 of the C. P. C. the title to the property must be deemed to have vested in the purchaser from the time when the property was sold, that is, from the 14 Makarom, 1120. The sale in favour of the 15th defendant in execution of the decree Ext. P-9 was not effective to pass any interest in item 4 in schedule B. For these reasons, the second appeal is dismissed with costs.


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