Skip to content


Bava C. Vaithilinga Mudaliar Vs. Chidambaram Pillai - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported inAIR1926Mad113; (1925)49MLJ520
AppellantBava C. Vaithilinga Mudaliar
RespondentChidambaram Pillai
Cases ReferredVythilinga Pandara Sannadhi v. Somasundara Mudaliar
Excerpt:
- .....either the assets or the income of the ulturai kattalai.2. the first objection assumes that the mohini allowance is a part of the assets of the ulturai kattalai ; but the argument is that the kattalai provides for various objects, and that the mohini allowance is earmarked for a certain specific purpose. granting but not deciding that this is so, it has not been shown that the debt in respect of which the decree was passed was not incurred for a purpose which would be a legitimate charge on the mohini allowance. on the other hand, from the judgment it would appear that the debt was incurred for carrying out the objects of the kattalai and performing all kinds of duties in connection with them, and there is no trace anywhere that the amount borrowed was expended in connection with any.....
Judgment:

1. The first defendant-appellant objects to execution on two grounds : first, that the Mohini allowance which is sought to be attached is an endowment for a special purpose, and therefore it cannot be made available to a creditor who has obtained a decree against the Ulturai kattalai in general terms ; secondly, that the allowance does not constitute either the assets or the income of the Ulturai kattalai.

2. The first objection assumes that the Mohini allowance is a part of the assets of the Ulturai kattalai ; but the argument is that the kattalai provides for various objects, and that the Mohini allowance is earmarked for a certain specific purpose. Granting but not deciding that this is so, it has not been shown that the debt in respect of which the decree was passed was not incurred for a purpose which would be a legitimate charge on the Mohini allowance. On the other hand, from the judgment it would appear that the debt was incurred for carrying out the objects of the kattalai and performing all kinds of duties in connection with them, and there is no trace anywhere that the amount borrowed was expended in connection with any particular object. Next the debt was incurred by the Receiver who fully represented the kattalai and the 1st and 2nd defendants being the trustees of the kattalai equally represented it in the suit in which the decree in question was passed. The decree contained clear words that the plaintiff was to recover the amount from the income and assets of the Ulturai kattalai. The executing Court cannot go behind the decree and it will not be open to the defendant to say that a particular item of income or assets should be excluded. [See Zamindar of Ettiyapuram v. Chidambaram Chetty and Ors. ILR (1920) M 675 : 39 MLJ 75. Sir John Wallis who delivered the judgment of the Full Bench thus observes:

This is the view taken in Hart Govind v. Narsingrao Konherrao Deshpande ILR (1913) B 194 and Kalipada Sarkar v. Hari Mohan Dalal ILR (1916) C 627 is also a recent authority for the proposition that the Court executing the decree cannot go behind it.

3. This was followed in Sami Mudaliar v. Muthiah Chetty : AIR1923Mad212 . In Kalipada Sarkar v. Hari Mohan Dalal ILR (1916) C 627 the learned Judges said:

It is indisputable that the Court executing a decree must take the decree as it stands and has no power to go behind the decree or entertain an objection to the legality or correctness of the decree.

4. It is noteworthy that no such defence was put forward in the suit although a similar plea was taken in connection with a particular sum which seems to form a part of the kattalai. The learned vakil for the appellant tells us that apart from the Mohini allowance of Rs. 7,200 per year, there are two other sums which constitute the endowment-Rs. 1,000 the sum in respect of which exception was taken in the suit itself, and a sum of about Rs. 700 which represents the realisation from the sale of Prasadams. If the contention is correct, the only amount that is available to the decree-holder is the latter sum of Rs. 700.

5. We shall next deal with the second objection. We cannot follow the argument that the Mohini allowance is neither the income nor the assets of the kattalai. The very documents on which the appellant relies show that this contention is utterly devoid of force. Ex. B refers to the Mohini allowance as cash income. Ex. C includes Mohini allowance among the items belonging to the kattalai in question. Again the case which the learned vakil for the appellant has relied on, Vythilinga Pandara Sannadhi v. Somasundara Mudaliar ILR (1893) M 199 refers to the Mohini allowance as constituting the largest portion of the income of the Ulturai kattalai. This argument therefore cannot be accepted.

6. The appellant lastly contends that we should in our discretion restrain the plaintiff from attaching this allowance and direct him to proceed against the other properties of the kattalai. It is unnecessary to decide whether we have this power; granting we have it, no reason has been given why we should exercise it in favour of the appellant. The only other items available according to him are the two paltry sums of Rs. 1,000 and Rs. 700. We also must note that this contention was not put forward before the Lower Court. There is no equity on his side, as the judgment, which at present we must assume is right, makes it clear that the debt is a long-standing one and the plaintiff has been kept out of his money for several years ; on the other hand, the defendant (appellant) has not shown that the interests of the trust will be advanced by allowing execution against the other properties.

7. Finally, the appellant's learned vakil has contended that if the whole Mohini allowance is attached, the daily puja in the temple cannot be performed and may have to be discontinued. Mr. Seshagiri Sastri, the learned vakil for the respondent, without admitting the truth of this statement, agrees to leave out Rs. 1,200 and attach the balance only, viz., Rs. 6,000. Any sums already drawn by the appellant out of the Mohini allowance must go towards the said sum of Rs. 1,200.

8. The appeal fails and is dismissed with costs.


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