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Talapoori Appiah and ors. Vs. Maram Reddi Rami Reddi - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai
Decided On
Reported in(1906)16MLJ503
AppellantTalapoori Appiah and ors.
RespondentMaram Reddi Rami Reddi
Cases ReferredMallikarjuna Ghetti v. Lingamoorthi Pantulu I.L.R. M.
Excerpt:
- .....there is no bar by limitation. in m. p. no. 863 of 1901, the plaintiff made an application to the district munsif under section 89 of the transfer of property act, stating that he could not get justice unless he realised his money by the sale of the - property mentioned in the schedule attached to the decree and that he accordingly requested that the decree might be made absolute. the order of the district munsif on this application was as follows: 'decree made absolute.' this order is carelessly worded. it should have been an order absolute for sale of the mortgaged property and the provisions of section 89 of the transfer of property act show that the district munsif having passed the order absolute for sale, was bound also to order that the mortgaged property, or a sufficient part.....
Judgment:

Moore, J.

1. The District Judge has held that until an order making the decree in O. Section No. 369 of 1898.absolute was passed, that decree was incapable of execution and that consequently lime would not begin to run till the 6fch September 1901, the date of the order absolute for sale. It is impossible to uphold this view. The decision of the majority of the judges of the Pull Bench of this Court in the case of Mallikarjuna Ghetti v. Lingamoorthi Pantulu I.L.R. M. 244 is to the effect that a decree under 'Section 88 of the Transfer of Property Act is capable of execution, and that an application under 8. 89 to make an order absolute for the sale of the mortgaged property, is an 'application for the execution of that decree. That Full Bench decision is one that the District Judge was bound to follow. Although the judgment of the District Judge cannot be upheld for the reasons given in it. I am of opinion that he has rightly held that ' there is no bar by limitation. In M. P. No. 863 of 1901, the plaintiff made an application to the District Munsif under Section 89 of the Transfer of Property Act, stating that he could not get justice unless he realised his money by the sale of the - property mentioned in the schedule attached to the decree and that he accordingly requested that the decree might be made absolute. The order of the District Munsif on this application was as follows: 'Decree made absolute.' This order is carelessly worded. It should have been an order absolute for sale of the mortgaged property and the provisions of Section 89 of the Transfer of Property Act show that the District Munsif having passed the order absolute for sale, was bound also to order that the mortgaged property, or a sufficient part thereof should be sold, and the proceeds dealt with as mentioned in Section 88. The wording of Section 89 is clear and, in my opinion, gives the Court no option. It has been urged here that as the plaintiff did not apply to have the property sold, the District Munsif was right in not ordering sale. Even if the facts were as represented, I could not admit that there is any force in this contention.

2. A reference to the application will also show that the plaintiff must be held to have applied for sale when he represented that he could not get justice unless he realised his money by sale of the mortgaged property. The District Munsif having granted a portion of the relief applied for, a order absolute for sale, and having neither granted nor refused the remaining portion, i.e., anorder that the property should be sold, I am of the opinion that it should be held that M. P. No. 863 of 1901 is still pending and that the District Munsif should be directed to dispose of it according to law. The order of the District Munsif on E.P. No. 3256 of 1904 and the judgment of the District Judge on appeal from that order should be set aside but without costs.

Sankaran Nair, J.

3. On the decree-holder's application M.P. No. 863 of 1901, under Section 89.of the Transfer of Property Act, she Munsiff ought to have passed an order for the sale of the mortgaged property or a sufficient portion thereof. He omitted to pass any such order and the present application is really one requesting the Court to pass that orde and must, therefore be treated as a part or a continuance of the original application M.P. No. 863 of 1901. I therefore concur in the proposed order.


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