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Sethurayer Vs. Shunmugam Pillai and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported in(1897)7MLJ279
AppellantSethurayer
RespondentShunmugam Pillai and anr.
Cases ReferredUmasoondury Dassy v. Brajonath Bhuttacharjee I.L.R.
Excerpt:
- - such a, declaration being binding on the parties would entitle the plaintiff to apply for the execution of the decree under section 232 of the code of civil procedure, which has been held applicable to a case like the present umasoondury dassy v......clause (b), of the specific relief act, but if the plaintiff's case be true he is entitled to the declaration granted by the munsif subject to the plaintiff reimbursing the 1st defendant the costs incurred by him in obtaining the decree.4. it was contended that such declaration would be fruitless and should not be granted; but we do not agree in this view. such a, declaration being binding on the parties would entitle the plaintiff to apply for the execution of the decree under section 232 of the code of civil procedure, which has been held applicable to a case like the present umasoondury dassy v. brajonath bhuttacharjee i.l.r.110, 7l8 .5. the judge was, therefore, wrong in holding that this suit was not maintainable. we accordingly reverse his decree and remand the appeal for disposal.....
Judgment:

1. Upon the allegations of the plaintiff, his case may be considered on the footing either that the 1st defendant was his agent, or that he was his benamidar. If 1st defendant was an agent, the plaintiff is entitled to obtain the advantage gained by the 1st defendant in securing a decree upon the bond. Whether 1st defendant's action in obtaining the decree was rightful or wrongful is immaterial. This has long been established law (Taylor v. Plumer 3. M. and Section 562).

2. If 1st defendant was a benamidar, the result would be the same, for he would be in the petition of a trustee (Sections 91 and 95 of the Indian Trusts Act, 1882).

3. The only remaining question is as to the relief to be given. The injunction prayed for cannot be granted under Section 56 clause (b), of the Specific Relief Act, but if the plaintiff's case be true he is entitled to the declaration granted by the Munsif subject to the plaintiff reimbursing the 1st defendant the costs incurred by him in obtaining the decree.

4. It was contended that such declaration would be fruitless and should not be granted; but we do not agree in this view. Such a, declaration being binding on the parties would entitle the plaintiff to apply for the execution of the decree under Section 232 of the Code of Civil Procedure, which has been held applicable to a case like the present Umasoondury Dassy v. Brajonath Bhuttacharjee I.L.R.110, 7l8 .

5. The Judge was, therefore, wrong in holding that this suit was not maintainable. We accordingly reverse his decree and remand the appeal for disposal on the merits in the light of the above observations. Costs will abide and follow the result.

6. No order is necessary on the memorandum of objections as the lower Court's decree has been reversed.


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