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Manakkal Bhattathiripad Vs. Manakkal Damodaran - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported in(1898)8MLJ115
AppellantManakkal Bhattathiripad
RespondentManakkal Damodaran
Excerpt:
- - so that the judge was clearly in error in treating the original decree as a mere nullity. a separate suit like this is prohibited by that section......of the 10th march 1893 had been entirely superseded or cancelled on review, and was, therefore, a mere nullity. the application for review was made only by the 11th defendant and was not directed against the whole decree but only against that part of it which affected the 11th defendant. the judgment on review treats the original decree as existing and final in all other respects than that in which it directs a modification. so that the judge was clearly in error in treating the original decree as a mere nullity. there is no doubt but that there should be only one decree in a suit, and though here the original and the revised decrees are written on separate papers, they must be taken together and read as one. in this view, it cannot be said that the appellant hero was executing a decree.....
Judgment:

1. The ground upon which the Judge seems to have based his conclusion was that there was no decree in execution of which the sale had taken place, for the Judge seems to have held that the original decree of the 10th March 1893 had been entirely superseded or cancelled on review, and was, therefore, a mere nullity. The application for review was made only by the 11th defendant and was not directed against the whole decree but only against that part of it which affected the 11th defendant. The judgment on review treats the original decree as existing and final in all other respects than that in which it directs a modification. So that the Judge was clearly in error in treating the original decree as a mere nullity. There is no doubt but that there should be only one decree in a suit, and though here the original and the revised decrees are written on separate papers, they must be taken together and read as one. In this view, it cannot be said that the appellant hero was executing a decree not in existence as it is still urged before us that he was. It is undisputable that there was an executable decree in existence between the parties and any misdescription of the terms of that decree in the application for execution should have been set right in execution and any objection to the sale founded on such misdescription was also a matter for disposal in execution under Section 244, Code of Civil Procedure. A separate suit like this is prohibited by that Section. On this ground, we must allow the appeal, and setting aside the order of the District Judge, we restore the decree of the District Munsif dismissing the suit with costs. The respondents must pay the appellant's costs in this and the lower appellate Court.


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