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Shaik Davud Rowther and ors. Vs. Paramasami Pillai - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported in35Ind.Cas.70; (1916)31MLJ207
AppellantShaik Davud Rowther and ors.
RespondentParamasami Pillai
Cases ReferredChetti v. Ramanatham Chetti and Alamelu Achi I.L.R.
Excerpt:
- - the last day for presentation of the document for registration was 1st june 1915. the respondent says in paragraph 8 of his counter petition that the petitioners failed to appear at the registration office and to give the respondent the necessary facilities for registration even 'on the last day for registration' and even after repeated prior requests......been attached by the respondent for the purpose of discharging the decree-debt and to execute a sale-deed. on the same date the subordinate judge passed the following order: ' permission granted' in his affidavit in support of his petition the 2nd defendant stated that the respondent had attached the judgment-debtor's share in the family properties in athur village, that the disputes between the respondent and the judgment-debtors had been amicably settled and it had been arranged that they (judgment-debtors) were to sell their share of the properties in the athur village to the respondent for rs. 40,000. the next step taken by the appellants was to apply on 5-7-15 under order 21, rule 2, c.p.c. to the court to record satisfaction of the decree. the allegations in the petition were.....
Judgment:

1. This is an appeal by defendants 2, 11, 13 and 14 in O.S. No. 38 of 1903 in the Subordinate Judge's Court of

2. Kumbaconum against an order rejecting an application to record satisfaction of the decree. The facts which have given rise to this appeal may be shortly stated. The decree was obtained by the South Indian Export Company against the members of a Muhammadan family and was transferred by the Company (decree-holder ) to the respondent. On 1st February 1915 the appellants applied to the Court under O. XXI E. 83 C.P.C. for permission to sell the properties which had been attached by the respondent for the purpose of discharging the decree-debt and to execute a sale-deed. On the same date the Subordinate Judge passed the following order: ' Permission granted' In his affidavit in support of his petition the 2nd defendant stated that the respondent had attached the judgment-debtor's share in the family properties in Athur village, that the disputes between the respondent and the judgment-debtors had been amicably settled and it had been arranged that they (judgment-debtors) were to sell their share of the properties in the Athur village to the respondent for Rs. 40,000. The next step taken by the appellants was to apply on 5-7-15 under Order 21, Rule 2, C.P.C. to the Court to record satisfaction of the decree. The allegations in the petition were that the following, arrangement had been come to, viz., that the appellants were to sell their share in the properties in Athur belonging to them to the respondent for Rs. 40,000 that out of the amount the res-pondent was to pay the appellant's share under a hypothecation decree and to set off the balance towards the sum of Rs. 24,400 settled as due under the decrees in O.S. No. 38/03 and O.S. 14/14 and that the respondent was to convey to the appellants all the properties in the Akkarai Puthur village excepting their share in the punja. It was further stated that an agreement to the above effect had been executed on 26-1-15, that in accordance with the agreement a sale-deed for Rs. 40,000 was executed by the appellants to the respondent on 1-2-15 and that the sale-deed had been delivered to the respondent. Notice was issued to the respondent who strenuously opposed the application to record satisfaction and put in a lengthy counter-petition in which he contended inter alia that the appellants were not entitled to 19/49 shares and that the 10th defendant in the suit who is said to be the widow of the 1st defendant was also entitled to a share. According to the respondent the arrangement which was come to in the presence of the 3rd defendant (the brother of the 1st defendant) was that the appellants and the 10th defendant were to convey their share in the lands in Athur village to the respondent, that the 10th defendant and the appellants were to execute a sale-deed for Rs. 40,000 and get it registered and that a deed of release should be obtained from the 10th defendant relinquishing her rights to the properties comprised in the sale-deed. The respondent further alleged that the sale-deeds were not completed as the appellants had not obtained a registered deed of release from the 10th defendant. The Subordinate Judge without recording any evidence rejected the application to record satisfaction on the ground that the sale-deed not having been registered could not pass title to the vendee and that until the sale-deed was registered the question whether satisfaction of the decree should be recorded could not be gone into. The learned vakil for the appellant contends that, as there was a lawful agreement sanctioned by the Court for the sale of the lands and, as a duly executed sale-deed was delivered to the respondent who was alone responsible for the non-registration of the document the Subordinate Judge ought to have held that this was a proper adjustment of the decree and that the Subordinate Judge ought to have enquired into the case on the merits and was wrong in holding that the question of satisfaction could not be gone into until the sale-deed had been registered.

3. We think that the Subordinate Judge was wrong in summarily rejecting the petition without allowing the parties an opportunity of establishing their respective allegations. It is impossible to decide the question whether there has been an 'adjustment' of the decree within the meaning of Order 21 Rule 2, C.P.C., as there has been no enquiry by the lower court into the allegations in the petition and counter-petition. The appellants' case was that in pursuance of the agreement they had duly executed and delivered a sale-deed for Rs. 40,000 to the respondent and had thus performed their part of the contract and that nothing remained to be done except to have the sale-deed registered. The parties are at variance as to what the details of the arrangement or agreement were According to the respondent it embraced other matters such as a division of the lands and it was an essential part of the agreement that a registered release-deed should be taken from the 10th defendant in respect of her share in the properties. The appellant did not produce the agreement in support of their petition but stated they could cause it to be produced during the enquiry. The agreement will probably throw considerable light on the questions at issue between the parties. In Ranga Lall v. Hem Narain Gir I.L.R. (1885) C. 166 it was held that the words ' to show cause ' in Section 258 of Act XIV of 1882 which corresponds to O. XXI Rule 2, C.P.C. do not mean merely to ' allege causes nor even to make out that there is room for argument, but both to allege cause and to prove it to the satisfaction of the Court' and that it is incumbent upon the court to investigate and decide any questions of fact on which the parties may not be agreed. We are of opinion that the Sub-ordinate Judge was wrong in rejecting the petition without holding any enquiry. In paragraph 11 of the counter-petition the res-pondent took the objection that the permission of the Court not having been obtained to enter into the compromise on be-half of the minor 14th defendant the compromise was invalid. The Subordinate Judge has not noticed this point. It has been held in Virupakshappa v. Shidappa and Basappa I.L.R. (1901) B. 109 and Aruna-chellam Chetti v. Ramanatham Chetti and Alamelu Achi I.L.R. (1905) M. 309 that the provisions of Order 32 Rule 7, C.P.C. apply to a compromise entered into even after a decree had been passed and that an adjustment of a decree to which the minor is a party requires the sanction of the Court. See also Sub-rule 1(a) of Rule 7 of Order 32, C.P.C. This is a matter which the Subordinate Judge will con-sider in disposing of the petition. The respondent in the 16th paragraph of his counter-petition contended that the petitioner's application was barred by limitation. If the ' adjustment ' was only completed by the delivery of the sale-deed to the respondent on the 1st of February 1915 (and not by the mere agreement of January 1915), the application seems not to be barred. The question again whether the adjustment was intended to be com-plete only after the petitioners had the sale-deed attested by the writer's signature has also not been gone into (see paragraphs 5 and 8 of the counter-petition). Lastly, assuming that the regis-tration of the sale-deed was intended to complete the adjustment, the probabilities are that according to the agreement between the parties, the petitioners were under an obligation to afford all necessary facilities to the respondent for that purpose. The last day for presentation of the document for registration was 1st June 1915. The respondent says in paragraph 8 of his counter petition that the petitioners failed to appear at the registration office and to give the respondent the necessary facilities for registration even 'on the last day for registration' and even after repeated prior requests. If so, the adjustment was not completed through the petitioners' default and the application would be unsustainable. We accordingly allow the appeal and set aside the order of the Subordinate Judge. He is directed to restore the petition to file and dispose of it with reference to the above observations according to law after giving the parties an opportunity of adducing evidence. Costs to abide the result.


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