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Kandoth Sankaran Nair Vs. Karanji Kizhakkeproth Atchuthan and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported inAIR1923Mad651; 73Ind.Cas.793; (1923)44MLJ643
AppellantKandoth Sankaran Nair
RespondentKaranji Kizhakkeproth Atchuthan 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. .....his own file under section 67, has or has not jurisdiction to transfer it for execution to another district munsifs court under section 39, civil procedure code.2. the learned district munsif in referring this question has pointed out the great practical inconvenience of a negative answer to it; and we fully appreciate the considerations he has referred to. it is however our duty to deal with the matter with reference to the law as it stands. under section 48 'the decrees shall be executed by the village court, which passed it, or by a village court or district munsif, to whom it is sent for execution under the provisions hereinafter contained.3. under section 66 'any decree passed by a village court may, on the application of the decree-holder, be transmitted for execution to the.....
Judgment:

1. The question referred to us is whether a District Munsif, receiving by transfer a decree of a village Court under Section 66 of the Madras Act I of 1889 or withdrawing execution of a decree to his own file under Section 67, has or has not jurisdiction to transfer it for execution to another District Munsifs Court under Section 39, Civil Procedure Code.

2. The learned District Munsif in referring this question has pointed out the great practical inconvenience of a negative answer to it; and we fully appreciate the considerations he has referred to. It is however our duty to deal with the matter with reference to the law as it stands. Under Section 48 'the decrees shall be executed by the village Court, which passed it, or by a village Court or District Munsif, to whom it is sent for execution under the provisions hereinafter contained.

3. Under Section 66 'any decree passed by a village Court may, on the application of the decree-holder, be transmitted for execution to the District Munsif' (who is defined earlier in the Act as the District Munsif within whose jurisdiction the Court is situate) 'who may execute the same, as if it were a decree passed by himself or may transmit it for execution to the Court of any other village, in which the defendant is represented to have moveable property;' and Section 67 authorises the District Munsif to take on his own motion the action authorized by Section 66. The result of these sections is not, in our opinion, to authorize the District Munsif to send a decree, which has been withdrawn to his own file for execution, to another District Munsif for that purpose. There is first no explicit reference to such transmission. There is next the explicit reference to a particular kind of transmission as open to the District Munsif, a transmission to the Court of any other village, in which the defendant is represented to have moveable property. In accordance with the ordinary canons of construction reference to this one kind of transmission is against an intention to authorize any other kind of transmission. The Act, as we understand it, is intended to supply a complete code of procedure for village Courts; and there is therefore no reason for importing into that procedure the provisions of another statute, the Civil Procedure Code, the less so as the reference to transmission in Section 66 is in our opinion against such imputation.

4. We may add with reference to the applicability of the provisions of the Civil Procedure Code that in the Amending Act II of 1920, when it was desired to make one of those provisions, Section 60, applicable to the execution of village Court's decree, it was so made applicable by a special provision, Section 23.

5. We must answer the reference in the negative. No one has appeared on either side on this reference. Therefore no order as to costs is necessary.


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