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Joti Kuruvetappa and 5 ors. Vs. Sri Devandra Kirti Buttarakappatracharia Swami by Agent Izari Sirasappa and 9 ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai
Decided On
Reported in(1906)16MLJ354
AppellantJoti Kuruvetappa and 5 ors.
RespondentSri Devandra Kirti Buttarakappatracharia Swami by Agent Izari Sirasappa and 9 ors.
Cases ReferredMuthu Vijaya Raghunatha Udayana Thevar v. Thandavaraya Thambiran I.L.
Excerpt:
- .....order the present suit was filed to recover the balance due (viz)., rs. 19,275-10-7 by sale of the property charged.2. the district judge gave a decree in favour of the plaintiff except in respect of the amount payable for the 1st and 2nd instalments, the recovery of which he held, was barred by limitation. the defendants nos. 1 to 5 appeal against the decree so far as it is against them and the plaintiff files a memo of objections in regard to the two instalments disallowed. in the appeal the question raised by all the appellants in common is as to the validity of the charge purported to have been created by the decree. the argument is that the claim of the plaintiff in o.s. no. 17 of 1880 was only for money due under bonds which gave no charge on the defendants' property and that it.....
Judgment:

1. The plaintiff is the head of a Matt in the Bellary District. A predecessor of his brought O.S. 17 of 1880 in the Sub-Judge's Court of the district against the principal members of the family of defendants Nos. 1 to 5 on certain bonds for money said to have been executed by Santhappa (the father of the 1st defendant) and Basalingappa (the father of the 3rd defendant) as managers the family. The claim of the plaintiff was adjusted by a compromise entered into between him and the defendants in the suit except the then 2nd defendant. By that compromise it was agreed that the plaintiff was to receive Rs. 7,828-4-0 and costs Rs. 1,685-13-6 in eleven equal instalments and the amount was made a charge on certain immoveable property of the defendants with interest at 12 per cent, in default of regular payment. The compromise was communicated to the court which recorded it and passed a decree in accordance therewith in 1883. The decree was assumed to contain an order for sale of the property in default of regular payment, until 1897 when it was decided in execution proceedings between the parties that the decree-holder was not entitled to enforce the charge otherwise than by a suit. As a result of that order the present suit was filed to recover the balance due (viz)., Rs. 19,275-10-7 by sale of the property charged.

2. The District Judge gave a decree in favour of the plaintiff except in respect of the amount payable for the 1st and 2nd instalments, the recovery of which he held, was barred by limitation. The defendants Nos. 1 to 5 appeal against the decree so far as it is against them and the plaintiff files a memo of objections in regard to the two instalments disallowed. In the appeal the question raised by all the appellants in common is as to the validity of the charge purported to have been created by the decree. The argument is that the claim of the plaintiff in O.S. No. 17 of 1880 was only for money due under bonds which gave no charge on the defendants' property and that it was therefore not competent to the court to give a decree creating a charge even though the defendants agreed to such a charge as one of the terms of the compromise to be embodied on the decree. Section 375 of the C.P.C. providRs. 'If a suit be adjusted wholly or in part by any lawful agreement or compromise, or if the defendant satisfy the plaintiff in respect to the whole or any part of the subject-matter of the suit, such agreement, compromise or satisfaction shall be recorded, and the Court shall pass a decree in accordance therewith so far as it relates to the suit, and such decree shall be final so far as relates to so much of the subject-matter of the suit as is dealt with by the agreement, compromise or satisfaction.'

3. We see nothing in this language to preclude the Court from embodying in the decree the charge which the parties agreed to as security for the debt. The agreement was 'lawful' and it 'relates to the suit,' that is, to the matter of the claim in the case. In the claim as made in the plaint there was, it is true, no prayer to have the amount charged on the property, but there is nothing in principle or in the language of the section which we have quoted to restrict the relief to be granted in accordance with a compromise to what is prayed for in the plaint or less. If that were the indention of the legislature, it would have found no difficulty in expressing the intention in suitable language. On the contrary, the language used is wide and general, and it is obvious that it would be highly inconvenient if the parties should not be allowed to settle their disputes on such lawful terms as they might agree to without being-restricted to such relief as one only of the parties had chosen to claim in the plaint. No doubt the language employed by this Court in the case of Venkappa Nayanin v. Timmappa Nayanin I.L.R(1894) M. 414 which was followed in Muthu Vijaya Raghunatha Udayana Thevar v. Thandavaraya Thambiran I.L.R(1898) M. 214 lends some support to the contention of the appellants. But in that very case the actual decision shows that the Court allowed reliefs not claimed in the plaint but agreed to by the parties as part of the compromise. In these circumstances, we do not feel compelled to accept the restricted construction of Section 375 involved in the language of the Court in that case.

4. We are, therefore, unable to accept the appellant's contention on this point, and we hold that the charge created by the decree in O.S. No. 17 of 1880 is valid. In this view, it is unnecessary to consider the other contention urged on behalf of the appellants on the footing that the Court had no power to charge the property by its decree.


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