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Manjunatha Chetty Vs. Appaya Alias Manuel Souza and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported in36Ind.Cas.988; (1916)31MLJ429
AppellantManjunatha Chetty
RespondentAppaya Alias Manuel Souza and anr.
Cases ReferredSitaram v. Mahipal I.L.R.
Excerpt:
- - 662 of 1907 was satisfied and for an injunction restraining the defendant from executing that decree. 298, for the position that suits like the present can be instituted. 437. ignored the prohibition contained in section 11 of act xxiii of 1861 against a separate suit and cannot be regarded as good law......in the suit comes under clause (1) of section 47 of the code of civil procedure and therefore a separate suit does not lie. the decision in deno bundhu nundy v. hari mati dassee i.l.r. (1904) c. 480 is in point. shephard and subramania aiyar, jj. held in bairagulu v. bapanna i.l.r. (1892) m. 302 that a suit for declaration will not lie. the relief for injunction stands on the same footing. mr. sitarama row sought to distinguish these cases on the ground that there is a claim for damages in this suit and referred us to the curiously worded third prayer in the plaint. in the first place, the prayer is not one claiming damages for breach of the agreement to certify. in the second place, the plaintiffs have suffered no damage yet.4. the learned vakil's main contention was that as it has.....
Judgment:

1. This is a suit for a declaration that the decree obtained by the defendant against the plaintiffs in O.S. No. 662 of 1907 was satisfied and for an injunction restraining the defendant from executing that decree. There is a third prayer which is valued at Rs. 5 and which runs in these terms:--'Granting any other reliefs which are not prejudicial to the plaintiffs and which the Court may think fit according to the circumstances of the case.' It is difficult to see what this prayer means.

2. The defendant pleaded that he did not receive the money and did not agree to enter up satisfaction. The Munsif disbelieved the plaintiffs' story, but the Subordinate Judge has decreed the claim.

3. An objection was taken by Mr. Adiga for the first time in this Court that the suit as brought is not sustainable. As the determination of this question did not involve the ascertainment of any facts, we heard arguments on it. We are of opinion that the objection is wellfounded. The question raised in the suit comes under Clause (1) of Section 47 of the Code of Civil Procedure and therefore a separate suit does not lie. The decision in Deno Bundhu Nundy v. Hari Mati Dassee I.L.R. (1904) C. 480 is in point. Shephard and Subramania Aiyar, JJ. held in Bairagulu v. Bapanna I.L.R. (1892) M. 302 that a suit for declaration will not lie. The relief for injunction stands on the same footing. Mr. Sitarama Row sought to distinguish these cases on the ground that there is a claim for damages in this suit and referred us to the curiously worded third prayer in the plaint. In the first place, the prayer is not one claiming damages for breach of the agreement to certify. In the second place, the plaintiffs have suffered no damage yet.

4. The learned vakil's main contention was that as it has been held that a suit for damages for breach of the covenant to enter up satisfaction will lie, a suit for declaration and injunction is also entertainable. We do not think there is any analogy between the two cases. Section 47 is a statutory prohibition against matters relating to the execution of a decree being agitated by a separate suit. Reliance was placed on Nubo Kishen Mookerjee v. Debnath Roy Chowdhry (1874) 22 W.R. 194 and Nujeem Mullick v. Erfan Moollah (1874) 22 W.R. 298, for the position that suits like the present can be instituted. Both the decisions as pointed out by Mr. Justice Macpherson in Azizan v. Matuk Lal Sahu I.L.R. (1893) C. 437. ignored the prohibition contained in Section 11 of Act XXIII of 1861 against a separate suit and cannot be regarded as good law. Moreover, in these oases, there was a special agreement not to execute the decree. There is no such agreement in this case. The case of Sitaram v. Mahipal I.L.R. (1881) A. 533 proceeds on the ground that a suit for the specific performance of an agreement not to execute is not affected by Section 244 of the old Code. It is not necessary to decide whether if there was a special agreement not to execute, the statutory prohibition contained in the Code of Civil Procedure can be avoided. In the present case, the plaint does not aver that there was such an agreement.

5. We must reverse the decree of the Subordinate Judge and restore that of the District Munsif. As the point on which we have decided the case was not raised in the Courts below, each party will bear his own costs throughout.


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