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V.G. Nataraja Mudaliar Vs. Official Assignee of Madras - Court Judgment

LegalCrystal Citation
SubjectProperty;Limitation
CourtChennai
Decided On
Reported inAIR1933Mad438; (1933)64MLJ692
AppellantV.G. Nataraja Mudaliar
RespondentOfficial Assignee of Madras
Cases ReferredArunachalam Chettiar v. Latchumanan Chettiar
Excerpt:
- - govinda padayachi (1925)48mlj678 ,where attachment was distinctly asked for, is not of much help......remarks.process whom.-------------------------------------------------------------------rs. a. p.sale warrant. immovable dt. munsif's property, court, 1 0 0vellore.-------------------------------------------------------------------3. there appear to have been four cases in this high court as regards payment of batta saving limitation. the first is the bench case in vijiaraghavalu naidu v. srinivasalu naidu i.l.r. (1905) mad. 399, where it was held that a step-in-aid had been taken. the second is, arunachalam chettiar v. latchumanan chettiar : (1924)47mlj537 , where wallace, j., held that the payment of process fee for the issue of a warrant of arrest in execution of a decree where the batta memo itself does not apply for the issue of process is not a step-in-aid of execution so as to.....
Judgment:

Pakenham Walsh, J.

1. The question in this case is whether the execution petition which was filed on 24th June, 1927, is barred by limitation. The previous application was on 23rd February, 1924. To save limitation the decree-holder relies upon the batta paid on 2nd July, 1924, for the auction sale of the property. The question is whether the payment of batta is a step-in-aid of execution. Both the Courts have held in favour of the decree-holder and against that decision this second appeal is filed.

2. The following is an extract of the batta memo:-Further memo filed on behalf of the plaintiff.

-------------------------------------------------------------------Particulars of the Against Residence Batta. Remarks.Process whom.-------------------------------------------------------------------Rs. A. P.Sale warrant. Immovable Dt. Munsif's Property, Court, 1 0 0Vellore.-------------------------------------------------------------------

3. There appear to have been four cases in this High Court as regards payment of batta saving limitation. The first is the Bench case in Vijiaraghavalu Naidu v. Srinivasalu Naidu I.L.R. (1905) Mad. 399, where it was held that a step-in-aid had been taken. The second is, Arunachalam Chettiar v. Latchumanan Chettiar : (1924)47MLJ537 , where Wallace, J., held that the payment of process fee for the issue of a warrant of arrest in execution of a decree where the batta memo itself does not apply for the issue of process is not a step-in-aid of execution so as to save limitation. As observed by Jackson, J,, in Raman Chetty v. Ramaswami Pillai ` (the third case) the actual paper is not quoted in the judgment nor was it around in the record. In Arunachalam Chettiar v. Latchumanan Chettiar : (1924)47MLJ537 Wallace, J., relied on Vijiaraghavalu Naidu v. Srinivasalu Naidu (1905) I.L.R. 28 Mad. 399 as indicating the then view of this Court that a mere payment of batta for process where the batta memo itself does not apply for the issue of process will not be a step-in-aid. In that case, Vijiaraghavalu Naidu v. Srinivasalu Naidu I.L.R. (1905) Mad. 399, a batta memorandum was held to be a step-in-aid and the judgment says that it asked that process may issue and for this purpose the necessary batta was deposited. Jackson, J., says in Raman Chetty v. Ramaswami Pillai (1928) 56 M.L.J. 64 that he does not think it can be gathered from that judgment that it was a distinct application for process over and above what was in the form. In Govindaswami Pillai v. Govinda Padayachi : (1925)48MLJ678 Madhavan Nair, J., held that the 'process application' for which batta was paid 'to attach the properties in the house of the defendants' and which stated 'that one rupee might be received for the purpose,' was a step-in-aid. Thus there are one Bench case and three single Judge decisions. Of these Govindaswami Pillai v. Govinda Padayachi : (1925)48MLJ678 , where attachment was distinctly asked for, is not of much help. Of the other two decisions by single Judges both consider themselves in agreement with the Bench case, Vijiaraghavalu Naidu v. Srinivasalu Naidu I.L.R. (1905) Mad. 399. But as observed in Raman Chetty v. Ramaswami Pillaiz by Jackson, J., in Arunachalam Chettiar v. Lalchumanan Chettiar : (1924)47MLJ537 the actual words in the batta memorandum are not set out. Jackson, J., says that

it if difficult to apply rulings which contain no citation of the document in question. In fact for that reason alone I should be prepared to ignore the case-law and trust to the plain interpretation of the statute.

4. He continues:

I had thought of referring the matter to a Bench, but on a consideration of the cases 1 hold that Vijiaraghavalu Naidu v. Srinivasalu Naidu I.L.R. (1905) Mad. 399 is clear authority (cf. Alagamuthu Pillai v. Devasagaya Fernandez (1915) 3 L.W. 34 which is not cited in Arunachalam Chettiar v. Latchumanan Chettiar : (1924)47MLJ537 .

5. I cannot help thinking that the brackets in the report are misplaced because Vijiaraghavalii Naidu v. Srinivasulu Naidu I.L.R. (1905) Mad. 399, is referred to twice in Arunachalam Chettiar v. Latchumanan Chettiar : (1924)47MLJ537 and in fact in the previous paragraph, Jackson, J., says that the learned Judge in that case considered Vijiaraghavalii Naidu v. Srinivasalu Naidu I.L.R. (1905) Mad. 399 Alagamuthu Pillai v. Devasagaya Fernandez (1915) 3 L.W. 34, which is not cited in Arunachalam Chettiar v. Latchumanan Chettiar : (1924)47MLJ537 , is such a clear case as not to be of much help. In the present case the Court passed an order on 31st January, 1924, that the properties should be sold on 7th July, 1924, and on 2nd July, 1924, the process fee was paid for issue of a sale warrant. Under Rule 187 of the Civil Rules of Practice the batta for the sale warrant has to be paid a week before and a warrant cannot be prepared till the batta is paid. If the batta is not paid the Execution Petition is liable to be dismissed. It seems to me that the entry 'Sale warrant' under 'Particulars of process' and 'Immovable property' under 'Against whom' is sufficient to indicate that the Court was asked to issue a sale warrant the batta being paid for it. I therefore agree with the view of both the Lower Courts that this is a step-in-aid of execution. The second appeal fails and is dismissed with costs.


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