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Km. Kr. Km. Kuppan Chettiar and ors. Vs. Kuttia Koundan and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported in158Ind.Cas.1; (1935)69MLJ121
AppellantKm. Kr. Km. Kuppan Chettiar and ors.
RespondentKuttia Koundan and ors.
Excerpt:
- .....code applied. a decree was obtained by the first respondent's predecessor and by virtue of that decree, a charge was created in respect of the judgment-debtor's property. it is stated, though in my opinion it is an unnecessary detail, that the suit filed by him was to entorce his unpaid vendor's lien. the first respondent brought the property to sale, but before the realisation of the assets, the petitioner in this court, the rival decree-holder applied for rateable distribution. the lower court has, after carefully considering the question, negatived his claim.2. mr. r. gopalaswami aiyangar for the petitioner contends that proviso (c) applies where the charge is a pre-existing one i.e., where it exists independent of the decree and not where as in the present instance, it is created.....
Judgment:

Venkatasubba Rao, J.

1. The question that arises is, whether proviso (c) to Section 73 of the Civil Procedure Code applied. A decree was obtained by the first Respondent's predecessor and by virtue of that decree, a charge was created in respect of the judgment-debtor's property. It is stated, though in my opinion it is an unnecessary detail, that the suit filed by him was to entorce his unpaid vendor's lien. The first respondent brought the property to sale, but before the realisation of the assets, the petitioner in this Court, the rival decree-holder applied for rateable distribution. The lower Court has, after carefully considering the question, negatived his claim.

2. Mr. R. Gopalaswami Aiyangar for the petitioner contends that proviso (c) applies where the charge is a pre-existing one i.e., where it exists independent of the decree and not where as in the present instance, it is created by the decree itself. There is no warrant in the words of the Section for this limited construction; on the contrary, there is no reason why a decree which for the first time creates a charge, should be excluded from the operation of the proviso. The relevant words are, 'a decree ordering its sale (the sale of immoveable property) for the discharge of an incumbrance thereon'. These words are quite general and apply to both kinds of decrees.

3. Secondly, it is argued that the first respondent having attached the property and brought it to sale, he should be deemed to have waived his right to treat the decree as one creating a charge. There is no force in this contention; to have attached the property was a superfluous and indeed a wrong step, but, that does not mean, that an error in regard to the procedure adopted deprives party of his substantive rights.

4. In the result, I hold that the lower Court's order negativing the petitioner's right to rateable distribution is right. The Civil Revision Petition fails and is dismissed with costs.


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