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Ellappa Naiker and ors. Vs. Sivasubramania Maniagaran - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai
Decided On
Reported in(1936)71MLJ607
AppellantEllappa Naiker and ors.
RespondentSivasubramania Maniagaran
Cases ReferredModono Mahono v. Kunja Behari
Excerpt:
- - 4. i regret to find that even before the district collector this matter does not seem to have been clearly stated. it would follow that the presentant of the petition could at best represent his master only in respect of matters relating to the factory but not in respect of the management of his land or the collection of money due to him under the mortgage......and 37 of the old civil procedure code, corresponding to rules 1 and 2 of order 3 of the present code. the sub-collector however treated that objection as not fatal; but, on the merits, he was of opinion that as deposed to by the village officers who had been examined as witnesses on the counter-petitioner's side, the mortgage relied on in support of the applications must have been discharged by a subsequent arrangement between the mortgagor and the mortgagee.3. it does not appear to have been brought to the notice of the sub-collector that even admitting every statement of the counter-petitioner's witnesses to be true, no title has as yet been conveyed to the mortgagee in respect of the portion proposed to be sold to him and even the transfer of possession to him of the properties so.....
Judgment:

Varadachariar, J.

1. These petitions ask for the revision of two orders passed by the District Collector of Tinnevelly, in petitions presented to him under Section 205 of the Estates Land Act, against the orders of the Sub-Collector passed on two applications under Section 131 of the Estates Land Act.

2. The applications to the Sub-Collector purported to be made on behalf of a mortgagee of the holding, a portion whereof had been sold for arrears of rent. An objection was raised before the Sub-Collector that the applications should not be treated as properly presented, because Subbayya Naidu who purported to present the petitions was not an agent of the mortgagee in the sense contemplated by Sections 36 and 37 of the old Civil Procedure Code, corresponding to Rules 1 and 2 of Order 3 of the present Code. The Sub-Collector however treated that objection as not fatal; but, on the merits, he was of opinion that as deposed to by the Village Officers who had been examined as witnesses on the counter-petitioner's side, the mortgage relied on in support of the applications must have been discharged by a subsequent arrangement between the mortgagor and the mortgagee.

3. It does not appear to have been brought to the notice of the Sub-Collector that even admitting every statement of the counter-petitioner's witnesses to be true, no title has as yet been conveyed to the mortgagee in respect of the portion proposed to be sold to him and even the transfer of possession to him of the properties so intended to be sold would not in the present state of the law vest the title in him. If the title in the portion intended to be sold in discharge of the mortgage-debt had not passed, it is impossible to hold that the mortgage had been extinguished either. It was no doubt at one time held by a Full Bench of this Court that the transfer of possession in pursuance of an agreement to sell would suffice to convey title even in the absence of a registered deed of sale, but that view has now been overruled by a decision of the Privy Council.

4. I regret to find that even before the District Collector this matter does not seem to have been clearly stated. Some objections under the Evidence Act and under the Civil Procedure Code are all that appears from his order to have been taken and I see no reason to think that he was not justified in overruling those objections.

5. It has been argued before me that it is open to this Court to interfere in revision and make the correct order. The decision in Ramaswami Goundan v. Kali Goundan (1918) 36 M.L.J. 571 42 Mad. 310 and the decision of the Full Bench in Sundaram v. Mamsa Mavuthar : AIR1921Mad157 would no doubt justify my interference notwithstanding some doubt as to whether the revision is to be of the Collector's order or of the Sub-Collector's order. But Mr. Jagannadha Das, the learned Counsel for the respondent, insists that if I consider myself at liberty to examine the correctness of the Sub-Collector's order so far as it is against the petitioner, I should in fairness also consider the correctness of his order so far as it is against the respondent, i.e., of the view taken by the Sub-Collector that the petition was validly presented.

6. It will be open to me to interfere in revision only on the footing that the application under Section 131 was a judicial proceeding. If it is to be so regarded, if is obvious that the presentation of the petition must be held to be governed by the provisions of the Civil Procedure Code, including those enacted in Rules 1 and 2 of Order 3. That those rules were intended to be applicable to proceedings under the Estates Land Act is made clear by Sub-clause (c) of Section 192 where the only modification made in Section 37 of the old Code is by substituting the words 'whether resident or not' for the words 'not resident'.

7. It is impossible to hold that Subbayya Naidu who presented the petition comes under, Clause (a) of Rule 2. Nor is it possible for me to hold that he will come within the terms of Clause (b). On his own statement as P.W. 1, he is merely looking after a factory on behalf of the mortgagee, He no doubt adds 'I do general business for my master in the off-season' and also says that he has personally asked the mortgagor for payment of the mortgage amount. Mr. Krishnaswamy Aiyar argues that on this statement he must be held to 'be carrying on business' for the mortgagee. I am unable to accede to this contention. 'It has been held in cases dealing with Section 20, Civil Procedure Code, and Clause 12 of the Letters Patent that the expression 'carrying on business' is used in a restricted sense, viz., as relating to commercial business. Having regard to the context and purpose, the same interpretation should be put upon that expression in Order 3, Rule 2, Civil Procedure Code. Sub-clause (b) also requires that the application must relate to matters connected with such trade or business only. It would follow that the presentant of the petition could at best represent his master only in respect of matters relating to the factory but not in respect of the management of his land or the collection of money due to him under the mortgage.

8. My attention has been drawn by Mr. Jagannadha Das to the judgment of King, J., in Modono Mahono v. Kunja Behari : AIR1935Mad786 , confirmed in L.P.A. Nos. 62 to 64 of 1935 (since reported)2 where it has been held that an execution application presented by a vakil without a vakalat is no presentation at all in the eye of the law. The reasoning of the learned Judges in that case is to a considerable extent applicable to the present case. I am therefore unable to say that this is a case in which I will be justified in interfering in revision, though I am of opinion that the sub-collector was not right in his view that according to the evidence adduced before him the mortgage in favour of the petitioner's master had been discharged. The Revision Petitions must accordingly be dismissed with costs.


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