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Kamal Kutti Vs. Ibrayi and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai
Decided On
Judge
Reported in(1901)ILR24Mad658
AppellantKamal Kutti
Respondentibrayi and anr.
Cases ReferredVasudevan v. Sankaran I.L.R.
Excerpt:
malabar law - suit against karnavan as manager of tarwad--attachment of tarwad property under decree--subsequent order of release--suit to cancel order of release--barred by section 244 of civil procedure code--civil procedure code--act xiv of 1882, section 244. - - 2. if the plaintiff suffers any hardship by this result it is because he has erroneously asked for the revision of the district judge's order of the 26th october 1898 instead of appealing against it, within the time allowed by law, as he ought to, and no doubt would have done, if he had not failed to see that the order was passed under section 244 instead of under section 278 of the code of civil procedure......why their claim should not be considered to have been dealt with under section 244 of the code of civil procedure as held by this court in kamalakutti v. ibrayi civil revision petition no. 421 of 1898 (unreported). to allow them to make a claim as strangers under section 278 of the code of civil procedure seems to be inconsistent with their being bound by the decree and with the policy of section 245 and of the decision in vasudevan v. sankaran i.l.r. 20 mad. 129 therefore, think that the decree of the district judge was right, and that this appeal should be dismissed with costs.2. if the plaintiff suffers any hardship by this result it is because he has erroneously asked for the revision of the district judge's order of the 26th october 1898 instead of appealing against it, within the.....
Judgment:

Benson, J.

1. The defendants were, in the absence of proof of 'fraud, bound by the decree obtained against their karnavan who was sued as senior member and manager for the tarwad as found by this Court in Kamalakutti v. Bipathumma Appeal against Order No. 107 of 1898 (unreported), Vasudevan v. Sankaran I.L.R. 20 Mad. 129. If they are bound by the decree it is difficult to see on what principle they can be treated as strangers to the decree for the purposes of execution. If the decree can be executed against them does not this imply that they are parties or representatives of parties? I can see no reason why their claim should not be considered to have been dealt with under Section 244 of the Code of Civil Procedure as held by this Court in Kamalakutti v. Ibrayi Civil Revision Petition No. 421 of 1898 (unreported). To allow them to make a claim as strangers under Section 278 of the Code of Civil Procedure seems to be inconsistent with their being bound by the decree and with the policy of Section 245 and of the decision in Vasudevan v. Sankaran I.L.R. 20 Mad. 129 therefore, think that the decree of the District Judge was right, and that this appeal should be dismissed with costs.

2. If the plaintiff suffers any hardship by this result it is because he has erroneously asked for the revision of the District Judge's order of the 26th October 1898 instead of appealing against it, within the time allowed by law, as he ought to, and no doubt would have done, if he had not failed to see that the order was passed under Section 244 instead of under Section 278 of the Code of Civil Procedure.

3. When the mistake was pointed out in the High Court, I should suppose that the plaintiff might have asked the Court to treat his revision petition (No. 421 to 1898) as an appeal, paying any stamp duty necessary. As he did not do this, I fear he must take the consequences of having mistaken his remedy.

Shephard, J.

4. I concur, though I must say that I have had considerable doubt about the question.


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