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Ambi Alias Subramanian Pattar Vs. Puthia Kovilakath Viathan Sridevi Styled Valia Thamburatti - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported in75Ind.Cas.366; (1923)45MLJ687
AppellantAmbi Alias Subramanian Pattar
RespondentPuthia Kovilakath Viathan Sridevi Styled Valia Thamburatti
Cases ReferredSankaran Nambudripad v. Sankaran Nair I.L.R.
Excerpt:
- - first it is argued that before the decree-holder obtained possession, notice ought to have been given to the 1st defendant, and that the failure to give notice prejudiced this defendant in respect of his right to remove the improvements made by him if it appeared to him advantageous to him that he should do so and in respect of his right to demand increased compensation for the period during which he had been in possession after the passing of the decree......property. in the second appeal two points have been pressed. first it is argued that before the decree-holder obtained possession, notice ought to have been given to the 1st defendant, and that the failure to give notice prejudiced this defendant in respect of his right to remove the improvements made by him if it appeared to him advantageous to him that he should do so and in respect of his right to demand increased compensation for the period during which he had been in possession after the passing of the decree. the second point argued is that the decrees which have been executed have been misconstrued as regards the interest awarded by the first court on costs. in support of the first point mr. ananthakrishna iyer has referred us to order xxi rule 1 clause 2 of the code of civil.....
Judgment:

1. The respondent in this case obtained a decree for redemption of a kanom after the expiry of the kanom period. There was an appeal and the appellate Court modified the District Munsif's decree on certain points. It con firmed it as regards the main right of the plaintiff to redeem the suit property. In the second appeal two points have been pressed. First it is argued that before the decree-holder obtained possession, notice ought to have been given to the 1st defendant, and that the failure to give notice prejudiced this defendant in respect of his right to remove the improvements made by him if it appeared to him advantageous to him that he should do so and in respect of his right to demand increased compensation for the period during which he had been in possession after the passing of the decree. The second point argued is that the decrees which have been executed have been misconstrued as regards the interest awarded by the first court on costs. In support of the first point Mr. Ananthakrishna Iyer has referred us to Order XXI Rule 1 Clause 2 of the Code of Civil Procedure which requires that notice should be given of any payment made into Court under a decree. This order and rule evidently refer to a money decree. The rule says that notice of such payment should be given to the decree-holder. In a redemption decree it is the decree-holder who makes the payment and the defendant who is to receive it. This rule is evidently not-applicable to cases of mortgage decrees which are governed by Order XXXIV. Rule 8 which governs decrees in redemption suits does not' specifically require any notice to be given to a defendant after the decree has been passed before the plaintiff obtains possession. Moreover the Kanomdar was not prejudiced by the want of notice seeing that he was' not entitled to have delivery stayed pending a revaluation of improvements. This has been established by Sankaran Nambudripad v. Sankaran Nair I.L.R. (1921) M. 960. As regards interest on costs, the first Court in its judgment awarded to the defendants their costs with interest at the usual rate. This was taken to be 6 per cent, when the decree was drawn up. Then plaintiff and the 1st defendant appealed and the appellate Court directed the plaintiff to pay the 1st defendant Rs. 203-8-0 as costs instead of Rs. 343-8-0 and the 1st defendant to pay the plaintiff Rs. 146-8-0 as costs and directed that in other respects the decree of the lower Court should be confirmed. As the lower appellate Court reduced the amount of costs to be paid to the 1st defendant and increased the amount due to the plaintiff, it is reasonable to suppose hat the appellate Court considered it unnecessary to award interest on costs, although it did not expressly say so. If it had thought it necessary to award interest to the 1st defendant, it might have also awarded interest to the plaintiff on his costs. While leaving the order awarding interest on the costs of the defendant untouched in the judgment the lower appellate Court simply directed that the decree of the District Munsif should be modified in accordance with the findings recorded. The words 'the decree of the lower Court is in other respects confirmed' appears in the decree only. The difficulty that has arisen in the present case is only as to the interpretation of the appellate Court's decree. Under Section 34(2) of the Code of Civil Procedure where a decree is silent with respect to interest, the Court shall he deemed to have refused such interest. The lower Court therefore appears to he right in holding that the result of the appellate Court's decree was to abrogate the order of the first Court as regards interest on costs and therefore the amount paid into Court must be treated as the correct amount, and the appellant is not entitled to have it increased or to have the property redelivered to him.

2. The Second Appeal fails and is dismissed with costs.


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