Skip to content


Ramaswami Aiyar Vs. Rama Aiyar - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported in(1892)2MLJ288
AppellantRamaswami Aiyar
RespondentRama Aiyar
Cases ReferredViraragava v. Varada I. L. R.
Excerpt:
- - we think therefore that the judge should have recorded a finding on the question and we shall now ask him to find whether the decree was, as is alleged by defendant bona fide, satisfied and whether the former creditor is entitled to a certificate......v. varada i. l. r. 5 m 128, that the holder of a decree for unascertained mesne profits is of a money decree for the purpose of claiming rateable distribution under section 295. the first contention therefore must be disallowed.3. it is then argued that as the heir of ramasami the deceased plaintiff in the suit has not been made a party, the application for execution cannot proceed. we observe, however, that seshappayyan has been made a party in the execution proceedings in o. s. no. 388 of 1885 and that the present proceedings are only a continuation of those proceedings.4. as the payment alleged to have been made by appellant to seshappayyan was, if made bona fide and if the creditor was willing to certify, prior to the prohibitory order obtained by the respondent, we see no reason.....
Judgment:

1. It is first argued that the decree for mesne profits reserved to be ascertained in execution is not a decree for money and that therefore respondent was not entitled to apply under Section 273 for the attachment of the decree in satisfaction of his decree in O. S. No. 388 of 1885.

2. We are of opinion the courts below were right in disallowing this contention. As observed by Hobhouse J. in Sharoda Moyee Burmonee v. Wooma Moyee Burmonee 8 W. R 11 with reference to Section 232, Act VIII of 1859, the decree was a decree for money in the sense that it represented a sum of money to be ascertained hereafter. It was also held, in Viraragava v. Varada I. L. R. 5 M 128, that the holder of a decree for unascertained mesne profits is of a money decree for the purpose of claiming rateable distribution under Section 295. The first contention therefore must be disallowed.

3. It is then argued that as the heir of Ramasami the deceased plaintiff in the suit has not been made a party, the application for execution cannot proceed. We observe, however, that Seshappayyan has been made a party in the execution proceedings in O. S. No. 388 of 1885 and that the present proceedings are only a continuation of those proceedings.

4. As the payment alleged to have been made by appellant to Seshappayyan was, if made bona fide and if the creditor was willing to certify, prior to the prohibitory order obtained by the respondent, we see no reason why the debtor should forfeit the benefit of the adjustment, inasmuch as the creditor is not barred from certifying satisfaction by any rule of limitation. We cannot accede to the contention on behalf of the respondent that the attachment under Section 273 determines the status of the prior execution-creditor as such. It only suspends his right for the limited purpose of enabling his judgment-creditor to obtain satisfaction. We think therefore that the judge should have recorded a finding on the question and we shall now ask him to find whether the decree was, as is alleged by defendant bona fide, satisfied and whether the former creditor is entitled to a certificate.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //