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Mullaseri Gapala Menon Vs. Krishekai Kovilakath Manavikraman Alias Anujan Rajah Avergal - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported in13Ind.Cas.179; (1912)22MLJ146
AppellantMullaseri Gapala Menon
RespondentKrishekai Kovilakath Manavikraman Alias Anujan Rajah Avergal
Cases ReferredThuchakovil Unni Koya v. Arapayil Pathuti Umma
Excerpt:
- .....the appellate court, however, was passed, the appellant had executed the original decree against seshan pattar. then it appears the assignor of the respondent in this appeal instituted a suit in 1906, in the district munsif's court at alatur and attached before judgment the right of seshan pattar to the restitution of the property recovered from him by the appellant under the decree of the appellate court dated 3rd september 1904. the application for execution, which the district munsif found would save limitation, was made by seshan pattar's sons on the. 30th august 1907. at the time of the application the decree had been attached as already stated, and the question is whether the application which was dismissed on the ground that the decree was under attachment and could not.....
Judgment:

1. The first question argued before us relates to limitation and arises upon the facts. One Seshan Pattar was sued in the District Munsif's Court at Alatur, in 1904, by the present appellant and the latter recovered a decree for payment of money but the decree was reversed by the Subordinate Judge's Court of Palghat on the 3rd September 1904. Before the judgment of the appellate court, however, was passed, the appellant had executed the original decree against Seshan Pattar. Then it appears the assignor of the respondent in this appeal instituted a suit in 1906, in the District Munsif's Court at Alatur and attached before judgment the right of Seshan Pattar to the restitution of the property recovered from him by the appellant under the decree of the appellate court dated 3rd September 1904. The application for execution, which the District Munsif found would save limitation, was made by Seshan Pattar's sons on the. 30th August 1907. At the time of the application the decree had been attached as already stated, and the question is whether the application which was dismissed on the ground that the decree was under attachment and could not therefore be executed, can be regarded as an application according to law as a step in aid of execution. The learned Counsel for the appellant has strongly relied, in support of his contention that the application was not in accordance with law, on the case of Thuchakovil Unni Koya v. Arapayil Pathuti Umma (1911) 1 M.W.N.187. But that was a case in which the attachment was under the second paragraph of Section 273 of the Code of 1882. But the provisions of this paragraph cannot be applied to the present case, for it is the same court, i.e., the District Munsif's Court of Alatur, which passed the decree sought to be executed and which has to execute the decree of the Subordinate Judge's Court of Palghat which is under attachment. This case would rather seem to be covered by the first part of the penultimate paragraph of Section 273, which does not direct stay of the execution of the attached decree. Even if that provision does not apply, the only effect of the attachment would be to prevent alienation. Nor is there anything in the terms of the order passed on the application for attachment which forbids the decree-holder from proceeding. We therefore hold that the application of the 30th August 1907 was in accordance with law.

2. The second point argued by Dr. Swaminadhan is that a right of restitution arising out of a reversing decree cannot be enforced in execution. But Section 14 of the present Civil Procedure Code which governs the question makes it quite clear not only that such a right can be enforced in execution but that no suit shall lie for the purpose.

3. The result is the appeal is dismissed with costs.


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