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M.A. Rm. Prianan Chettiar Vs. P.V.A.R.K.R. Lakshmanan Chettiar and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported inAIR1935Mad212; (1935)68MLJ265
AppellantM.A. Rm. Prianan Chettiar
RespondentP.V.A.R.K.R. Lakshmanan Chettiar and ors.
Cases ReferredVeluswami Naicken v. Dhanakoti Balasubramania Chettiar
Excerpt:
- - the attachment was effected and the petition was endorsed as 'closed'.3. on 25th october, 1921, second plaintiff filed 'e. 191 of 1922 and on his failure to pay batta it was endorsed on e. that suit failed and the attachment was raised. 75 of 1927 and has been informed that he is 'hopelessly barred by time'.8. by this date the distinction between 'closed' and 'dismissed 'is well known. patanjali sastri argues that after the failure to pay batta in e. 191 of the court would have had good reasons to dismiss e......has been informed that he is 'hopelessly barred by time'.8. by this date the distinction between 'closed' and ' dismissed ' is well known. veluswami naicken v. dhanakoti balasubramania chettiar (1927) 106 i.c. 138 and it cannot be argued that a petition which is closed has been dismissed so as to attract the mischief of order 21, rule 57.9. mr. patanjali sastri argues that after the failure to pay batta in e.a. no. 191 of the court would have had good reasons to dismiss e.p. no. 76, which may be true, but the court did not avail itself of this opportunity and e.p. no. 76 stood as merely 'closed' with the attachment under it still effective. then it is argued that, assuming it to be only closed, the petition which re-opens it must be of the same nature as itself. of course the present.....
Judgment:

Jackson, J.

1. In O.S. No. 34 of 1912, Ramnad Sub-Court, for framing a scheme this Court ultimately allowed both parties costs out of the temple funds. The surviving plaintiffs 2, 7, 9 were entitled to Rs. 7,458-7-6.

2. Second plaintiff filed E.P. No. 76 of 1921 to attach Rs. 8,000 lying to the credit of the temple in the India Bank. The attachment was effected and the petition was endorsed as 'closed'.

3. On 25th October, 1921, second plaintiff filed 'E.A. No. 502 of 1921 in E.P. No. 76 of 1921' praying to be allowed to draw on his own behalf Rs. 1,780-11-11 and the balance after notice to respondents. The Court ordered that the Rs. 8,000 should be sent for and a cheque for the above amount should be issued to the second plaintiff, and notice should go to the other plaintiffs for the balance. Then after various notices had been issued, second plaintiff was ordered to apply to bring legal representatives of plaintiffs 3 to 5 on the record. Second plaintiff petitioned to this effect in E.A. No. 191 of 1922 and on his failure to pay batta it was endorsed on E.A. No. 502 'E.A. No. 191 of 1922 (E.A. No. 191 of 1922 dismissed). Hence this petition too is dismissed, 31st August, 1922'.

4. 'This petition' no doubt refers to E.A. No. 502 which is described as a petition in its heading. There is no order dismissing the original E.P. No. 76 under which the attachment was made.

5. Meanwhile on 20th February, 1922, the Additional Sub-Court, Sivaganga, had attached the deposit in a suit where another person was claiming a right to these costs. That suit failed and the attachment was raised.

6. Then on 12th April, 1924, a trustee of the temple, 33rd defendant, applied to get the deposit paid back to the India Bank. The sheristadar of the Ramnad Sub-Court was careful to note that the Sivaganga attachment was raised, but he said nothing about the Court's own attachment in E.P. No. 76 and the Subordinate Judge allowed the trustee to draw the money; on 18th August, 1924.

7. Now the second plaintiff applies for this sum in E.A. No. 75 of 1927 and has been informed that he is 'hopelessly barred by time'.

8. By this date the distinction between 'closed' and ' dismissed ' is well known. Veluswami Naicken v. Dhanakoti Balasubramania Chettiar (1927) 106 I.C. 138 and it cannot be argued that a petition which is closed has been dismissed so as to attract the mischief of Order 21, Rule 57.

9. Mr. Patanjali Sastri argues that after the failure to pay batta in E.A. No. 191 of the Court would have had good reasons to dismiss E.P. No. 76, which may be true, but the Court did not avail itself of this opportunity and E.P. No. 76 stood as merely 'closed' with the attachment under it still effective. Then it is argued that, assuming it to be only closed, the petition which re-opens it must be of the same nature as itself. Of course the present E.A. No. 75 is of the same nature and is merely supplementary to the position for attachment, but it is further argued that this later petition is misconceived, and should be a petition to set aside the Court's order allowing the trustee to withdraw the deposit. But that is not a matter of which the petitioner can be expected to be aware. No notice was sent to him to show cause why his attachment should not be raised, and he had every right to assume that it was still operative until E.P. No. 76 was dismissed: It is the duty of the Court to rectify its own mistake and having paid out moneys which were under attachment, to get them returned. The lower Court is directed to proceed accordingly, and then to dispose of E.A. No. 75 of 1927 on its merits. Costs to appellant.

10. This root of confusion would be avoided if Courts did not make it their practice to endorse execution petitions with the maximum of untidiness and illegibility.


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