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Juji Kamti and ors. Vs. Annai Bhatta - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Judge
Reported in(1894)ILR17Mad382
AppellantJuji Kamti and ors.
RespondentAnnai Bhatta
Cases ReferredJhabar Mohamad v. Modem Sonahar I.L.R.
Excerpt:
civil procedure code - act xiv of 1882, section 257a--adjustment of decree out of court--instalment bond--consideration - .....have been allowed due effect in arriving at those decisions.2. the second question is whether the suit is time-barred. if, as alleged in the plaint, the first instalment of rs. 50 was paid in february 1886, as the next instalment was not payable till february 1887, the suit brought in january 1890 was in time. in the revision petition defendants claim credit for the sum of rs. 50. we cannot, therefore, say the suit is time-barred.3. a further question raised is as to the liability of the third defendant for the debt. third defendant was not a party to the bond on which the suit is brought, and the karar referred to in the bond to which third defendant is alleged to have been a party appears to have been superseded by the plaint bond. we therefore exonerate third defendant from all.....
Judgment:

1. Two questions are argued in support of this petition for revision. The first is that the bond sued on is void as an agreement falling under Section 257A of the Code of Civil Procedure. That section is inserted in the Code in the chapter relating to the execution of decrees and in the section headed 'mode of executing decrees.' This suggests that the intention was to render such agreement void only so far as it affects the right to execute the decree. As observed in Sellamayyan v. Muthan I.L.R. 12 Mad. 61 where the benefit of a decree is given up, and in consideration of it a bond is executed, it cannot be intended that the bond should not be the foundation of a fresh suit. This is also the view taken by the High Court of Calcutta. Hukum Chand Oswal v. Taharunnessa Bibi I.L.R. 16 Cal. 504; Jhabar Mohamad v. Modem Sonahar I.L.R. 11 Cal. 671 We are aware that the High Court at Bombay has held otherwise, but the scheme of the Code does not appear to have been allowed due effect in arriving at those decisions.

2. The second question is whether the suit is time-barred. If, as alleged in the plaint, the first instalment of Rs. 50 was paid in February 1886, as the next instalment was not payable till February 1887, the suit brought in January 1890 was in time. In the revision petition defendants claim credit for the sum of Rs. 50. We cannot, therefore, say the suit is time-barred.

3. A further question raised is as to the liability of the third defendant for the debt. Third defendant was not a party to the bond on which the suit is brought, and the karar referred to in the bond to which third defendant is alleged to have been a party appears to have been superseded by the plaint bond. We therefore exonerate third defendant from all liability for the debt and direct plaintiff to pay her costs; and we modify the decree as against defendants 1 and 2 by reducing the amount decreed from Rs. 420 to Rs. 370.

4. Plaintiff and defendants 1 and 2 will pay each other's costs throughout proportionate to the amounts now allowed and disallowed.


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