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Pathambi Vs. Mytheen Bibi and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported in(1902)12MLJ96
AppellantPathambi
RespondentMytheen Bibi and anr.
Excerpt:
- section 16 (1) (c) :[tarun chatterjee & aftab alam,jj] ready and willing to perform-concurrent findings of fact on consideration of evidence on record that appellants-buyers were not ready and willing to perform terms and conditions of agreement for sale - buyers failing to pay balance consideration before agitating matter before supreme court held, concurrent finding cannot be interfered with. section 20: [tarun chatterjee & aftab alam,jj] whether time is the essence of contract held, many instance in contract which repeatedly showed that time was to be of essence of contract were specifically mentioned. clear condition in contract that purchasers would have to definitely deposit balance amount by date stipulated in contract for sale show that time was essence of contract. .....at the time the present suit was instituted. under the original decree the plaintiff entered into joint possession and satisfaction of the decree was entered up. she then applied for and obtained an amendment of the decree, without taking steps to have the order recording1 satisfaction of the decree set aside.3. the amendment of a decree the satisfaction of which had been recorded was a nullity. the state of thing's, therefore, is that in satisfaction of her decree the plaintiff entered into joint possession. she alleges she has been ousted, from her joint possession.4. the fact that she has been ousted from joint possession (if she has been so ousted) gives her a fresh cause of action in respect of which a fresh suit is maintainable.5. we must sot aside the decrees of the two lower.....
Judgment:

1. The Judgment of the lower appellate Court dismissing the suit is baaed on the view that when the present suit was instituted, the decree in the former suit remained unexecuted and that tins plaintiff might have applied for execution of that decree.

2. It seems to us that the decree in the former suit had been executed at the time the present suit was instituted. Under the original decree the plaintiff entered into joint possession and satisfaction of the decree was entered up. She then applied for and obtained an amendment of the decree, without taking steps to have the order recording1 satisfaction of the decree set aside.

3. The amendment of a decree the satisfaction of which had been recorded was a nullity. The state of thing's, therefore, is that in satisfaction of her decree the plaintiff entered into joint possession. She alleges she has been ousted, from her joint possession.

4. The fact that she has been ousted from joint possession (if she has been so ousted) gives her a fresh cause of action in respect of which a fresh suit is maintainable.

5. We must sot aside the decrees of the two lower Courts. The case must be restored to the .District Munsif's file in order that he may dispose of it according to law. Costs will follow the result.


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