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Sri Balusu Butchi Sarvarayudu, Proprietor of Kapileswarapuram and Kasanakurru Estates Vs. Polisetti Venkataratnam - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtChennai
Decided On
Reported inAIR1945Mad277; (1945)1MLJ332
AppellantSri Balusu Butchi Sarvarayudu, Proprietor of Kapileswarapuram and Kasanakurru Estates
RespondentPolisetti Venkataratnam
Cases Referred and Suryanarayana v. Sri Rajah Sobanairi Appar
Excerpt:
- .....plaintiff lay by way of appeal; because the order passed was one under section 47 of the code of civil procedure and so a suit did not lie. that objection was upheld by the trial court; but in appeal it was held that section 47 did not apply and that the suit lay.2. somewhat similar questions have come before this court on many occasions, the leading case being jagannatha pillai v. kathaperumal pillai i.l.r. (1902) mad. 267. there, it was held that since the madras estates land act provided no remedy for an improper sale and parts a and b of the,|chedule did not exclude the common law right of a person to have recourse to a civil court when aggrieved, a suit lay. jackson, j., further remarked that since the madras estates land act provided a special procedure for execution in sections.....
Judgment:

Horwill, J.

1. The plaintiff in the suit out of which this civil miscellaneous appeal arises, contending that he had made the deposit of rent required of him by Section 15 of Act IV of 1938. applied to the Revenue Court to stay the sale of his holding. The application was dismissed and the land sold. He thereupon brought the present suit for an injunction to restrain the landholder from taking possession of the land he had purchased in Court auction. An objection was taken by the appellant that the remedy of the plaintiff lay by way of appeal; because the order passed was one under Section 47 of the Code of Civil Procedure and so a suit did not lie. That objection was upheld by the trial Court; but in appeal it was held that Section 47 did not apply and that the suit lay.

2. Somewhat similar questions have come before this Court on many occasions, the leading case being Jagannatha Pillai v. Kathaperumal Pillai I.L.R. (1902) Mad. 267. There, it was held that since the Madras Estates Land Act provided no remedy for an improper sale and parts A and B of the,|chedule did not exclude the common law right of a person to have recourse to a Civil Court when aggrieved, a suit lay. Jackson, J., further remarked that since the Madras Estates Land Act provided a special procedure for execution in Sections 111 to 131 of that Act, the procedure laid down for execution proceedings in the Code of Civil Procedure could not be applied. In Gopalakrishnayya v. Narasimha Rao I.L.R. (1902) Mad. 267 Krishnaswami Aiyangar, J., followed Jagannatha Pillai v. Kathaperumal Pillai I.L.R. (1902) Mad. 267. By that time Section 192, upon the present wording of which the learned Advocate for the appellant relies, had been amended. Formerly, Section 192 made applicable to proceedings under the Madras Estates Land Act only such provisions of the Code of Civil Procedure as were specifically mentioned, whereas under the present section all the provisions of the Code of Civil Procedure apply except such as the Government may from time to time notify. The effect of the amendment was not, however, considered by Krishnaswami Ayyangaf, J.; and it is possible that the matter with which he was dealing related to something that was done before the amendment came into force. In Suryanarayana v. Sri Rajah Sobhanadri Apparao Bahadur, it was argued that the effect of the amendment was to change the procedure in execution of revenue decrees. Patanjali Sastri, J., after referring to a passage from the judgment of Jackson, J., said:

This anomaly, it is urged, cannot occur after the amendme'nt of Section 192 as it does not now specifically exclude the application of Order 43 to proceedings under the Estates Land Act. I do not consider that this makes any difference. The substantial reasoning on which the decision in Jagannatha Pillai v. Kathaperumal Pillai I.L.R. (1902) Mad. 267 is based is that Section 132 by making the provisions of Chapter VI of the Estates Land Act applicable to the execution by a Revenue Court of any decree for arrears of rent provides a complete code of procedure, and Section 192 which applies the provisions of the Code of Civil Procedure to proceedings under the Act must be read subject to Section 132.

Two cases have been cited by the learned advocate for the appellant to suggest a doubt whether the reasoning in Jagannatha Pillai v. Kathaperumal Pillai I.L.R. (1902) Mad. 267 would be valid after the amendment to Section 192. They are Peran Ambalagaran v. Venkatarama Naicker and Ors. I.L.R. (1902) Mad. 267 and Venkataramiah Chetty v. Wenkatas'wami Chetti I.L.R. (1902) Mad. 267. These cases dealt with the question whether an appeal lay against an ex parte decree; and it was held that the amendment made such an appeal possible. Gopalakrishnayya v. Narasimha Rao was specifically referred to in Venkataramiah Chetty v. Venkataswami Chetti, and the correctness of the finding not doubted, it being distinguished on the ground that Gopalakrishnayya v. Narasimha Rao dealt with a matter arising in execution, for which special provision had been made in the Madras Estates Land Act, whereas the right of appeal against an ejc parte decree was not expressly controlled by any provision of the Madras Estates Land Act, with the result that Section 192 as amended brought into operation the provisions of Order IX of the Code of Civil Procedure.

3. Following Jagannatha Pillai v. Kathaperumal Pillai I.L.R. (1902) Mad. 267, Gopalakrisknayya v. Narasimha Rao I.L.R. (1902) Mad. 267, and Suryanarayana v. Sri Rajah Sobanairi ApparS Bahadur, I hold that Section 47 would not apply, that there is no prohibition of a suit, and that the common law right of a person aggrieved to file a suit in a Civil Court is not therefore barred.

4. The appeal is dismissed with costs.


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