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Chokkalinga Pillai Vs. Kumarasami Pillai - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported in(1900)10MLJ132
AppellantChokkalinga Pillai
RespondentKumarasami Pillai
Excerpt:
- - 2. the order which the district munsif ought to have made on the first application was an order to adjourn the matter until the attachment was raised, and as the district munsif clearly did not mean to dismiss the application, we think he must be taken to have made that order......translation that the 'petition is dismissed, by which expression, as we gather from the diary, the district munsif merely meant that it was removed from the file. in 1893 while the decree was still under attachment another application was made in which the fact that execution had been stopped by the attachment is mentioned. that, application is in terms dismissed for the reason that the attachment was still pending. on the 24th july 1895 the attachment was raised. on the 12th july 1898 the present application was made which refers to the first application and asks for the same relief.2. the order which the district munsif ought to have made on the first application was an order to adjourn the matter until the attachment was raised, and as the district munsif clearly did not mean to.....
Judgment:

1. The application of 1888 was made in due time. The order thereon of the 6th July states in the English translation that the 'petition is dismissed, by which expression, as we gather from the diary, the District Munsif merely meant that it was removed from the file. In 1893 while the decree was still under attachment another application was made in which the fact that execution had been stopped by the attachment is mentioned. That, application is in terms dismissed for the reason that the attachment was still pending. On the 24th July 1895 the attachment was raised. On the 12th July 1898 the present application was made which refers to the first application and asks for the same relief.

2. The order which the District Munsif ought to have made on the first application was an order to adjourn the matter until the attachment was raised, and as the District Munsif clearly did not mean to dismiss the application, we think he must be taken to have made that order. That being so, the application of 1893 which was nothing but a motion to revive the first application was summarily dismissed, inasmuch it was premature.

3. The dismissal of it cannot prejudice the present application in which again the decree-holder seeks to have effect given to his original application. Treating the order of July 1888 as an order of adjournment, we think it was competent to the District Munsif to allow the matter to be prosecuted after the raising of the attachment if there was no undue delay on the decree-holder's part in prosecuting it. It must not be supposed that the law gave him three years from the date of the removal of the attachment. But no final order could have been made without notice to the parties. The circumstances are not before us, and for aught we know, the decree-holder was not at the time aware of the attachment having been raised. We must dismiss the appeal with costs.


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