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Abdurahiman Kutti Haji Vs. Kunhammed Koya and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported in(1900)10MLJ85
AppellantAbdurahiman Kutti Haji
RespondentKunhammed Koya 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. .....and are in the joint possession of the members of the family. the claim is made by him in a representative capacity, while the decree against him is in his personal capacity. it has recently been held by a full bench of this court (judgment in appeal against order 6 of (1899) 10 m.l.j. 64 in c.m.p. 633 of 1897, subordinate judge's court of negapatam that when a person against whom there is a personal decree claims attached property on the ground that he holds it as a trustee for persons not parties to the suit, the claim falls under section 278 and not under section 244 of the civil procedure code. in our opinion the principle of this decision applies to the facts of the. present case as set out in the judgment-debtor's petition. consequently the section which applies is section 278.....
Judgment:

1. In this case the decree is a personal decree against the Judgment-debtor. The Judgment-debtor has preferred a claim to the property which has been attached under the decree, on behalf of the members of his family on the ground that the properties form the common tarwad property and are in the joint possession of the members of the family. The claim is made by him in a representative capacity, while the decree against him is in his personal capacity. It has recently been held by a Full Bench of this Court (Judgment in appeal against Order 6 of (1899) 10 M.L.J. 64 in C.M.P. 633 of 1897, Subordinate Judge's Court of Negapatam that when a person against whom there is a personal decree claims attached property on the ground that he holds it as a trustee for persons not parties to the suit, the claim falls under Section 278 and not under Section 244 of the Civil Procedure Code. In our opinion the principle of this decision applies to the facts of the. present case as set out in the judgment-debtor's petition. Consequently the section which applies is Section 278 and no appeal lies from the order of the District Munsif. We allow the preliminary objection and dismiss the appeal with costs.


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