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Arumugam Pillai Vs. Krishnaswami Naidu and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported in(1920)39MLJ222
AppellantArumugam Pillai
RespondentKrishnaswami Naidu and ors.
Cases ReferredChidambaram Chettiar v. Krishna Vcthiar I.L.R.
Excerpt:
- - but on the assumption which at present rests on mere assertion, that the purchaser was a party to that fraud, there is still the fact that the absence of notice to appellant or the debtor was never distinctly alleged or, so far as appears, relied on in the lower courts or in the grounds of appeal here. i do not think this contention is well bounded......whether effect has been wrongly refused to the arrangement made before decree, i observe that chidambaram chettiar v. krishna vathiar i.l.r. (1916) mad. 233 dealt with an arrangement to postpone execution not with one, such as is pleaded here, for the decree being treated as in part inexecutable. an arrangement of the latter description has received effect in this court so far as appears from its authorised reports, only in one case, rama aiyar v. srinivasa pattar i.l.r. (1896) mad. 230 the decision of a single judge ; and i do not think that the decision in chidambaram chettiar v. krishnavathiar i.l.r. (1916) mad. 233. obliges us to extend the principle to the extent required by appellant's contention.2. the other objection to the sale is that it was obtained and carried through by.....
Judgment:

Oldfield, J.

1. On the question whether effect has been wrongly refused to the arrangement made before decree, I observe that Chidambaram Chettiar v. Krishna Vathiar I.L.R. (1916) Mad. 233 dealt with an arrangement to postpone execution not with one, such as is pleaded here, for the decree being treated as in part inexecutable. An arrangement of the latter description has received effect in this Court so far as appears from its authorised reports, only in one case, Rama Aiyar v. Srinivasa Pattar I.L.R. (1896) Mad. 230 the decision of a single Judge ; and I do not think that the decision in Chidambaram Chettiar v. KrishnaVathiar I.L.R. (1916) Mad. 233. obliges us to extend the principle to the extent required by appellant's contention.

2. The other objection to the sale is that it was obtained and carried through by a person having no authority from the decree-holder in the matter. This objection is pressed here in the shape of a contention that the whole proceedings from and including the final decree were taken without notice going to appellant or the judgment-debtor and that they therefore were vitiated by fraud and cannot be sustained. But on the assumption which at present rests on mere assertion, that the purchaser was a party to that fraud, there is still the fact that the absence of notice to appellant or the debtor was never distinctly alleged or, so far as appears, relied on in the Lower Courts or in the grounds of appeal here. In fact so far as we have been able to test this case by reference to the final decree we observe that the mention in it of the judgment-debtor as absent is ground for a presumption that he had had notice and disregarded it ; and then his remedy was by proceedings to have that decree set aside. This objection also to the Lower Appellate Court's decision is therefore unsustainable.

3. The appeal against Appellate order is dismissed with costs. The Civil Revision Petition is dismissed: no order as to costs.

Seshagiri Aiyar, J.

4. I agree in the main with the observations of my learned brother in the judgment just now delivered. In Chidambaram Chettiar v. Krishna Vathiar I.L.R. (1916) Mad. 283 I rested my conclusion on the theory of stare decisis. It is argued before us by Mr. jayarama Aiyar that it follows from my judgment in that case that all the cases referred to therein as supporting the theory of stare decisis must be taken to have been accepted by me as correct. I do not think this contention is well bounded. The course of decisions was referred to for the general proposition that pre-decree arrangements are within the language of Section 47 C.P.C. I did not intend to accept as correct every one of the decisions I quoted for that purpose. On the other hand I want to make it clear that the decision in Chidambaram Chettiar v. Krishna Vathiar I.L.R. 1916) Mad. 283 should not, in my opinion, be applied to what are termed cognate cases. Further I am clear that an attack against the decree as having been obtained by fraud by one of the parties thereto is not within the principle of Chidambaram Chettiar v. Krishna Vcthiar I.L.R. (1916) Mad. 283.

5. I agree therefore, with my learned brother that the appeal should be dismissed with costs.


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