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Sri Rajah Ravu Venkata Mahipathi Suryarao Bahadur Garu of of Pithapuram Vs. Mattapalli Chalamayya and ors. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtChennai
Decided On
Reported inAIR1947Mad339; (1947)1MLJ87
AppellantSri Rajah Ravu Venkata Mahipathi Suryarao Bahadur Garu of of Pithapuram
RespondentMattapalli Chalamayya and ors.
Excerpt:
- - 1,466-6-0 in this distribution on the footing that his decree was a money decree, which was what the first court as well as the high court on appeal held but on appeal to the privy council it was held by its judgment dated 28th april, 1936, that he was entitled only to a charge decree having a vendor's lien and that he had no in ht to proceed against the general assets of the judgment-debtor. to this application the judgment-debtor namely the zamindar of pelavaram as well as the mullapudi people were made party respondents. somasundaram who says that as the order by the lower court was made in the exercise of its inherent powers of jurisdiction und r section 151, there is no appeal from such an order and that at best only revisions would lie. 487 of 1933) as well as in the present..........been held to be barred in some previous stage of the proceedings. we are not concerned with that decree. the application has been filed within three years from the date of the order of the privy council holding that the appellant is not entitled to a money decree but only to a charge decree. this order confers upon the petitioners the right to apply for refund of the amount paid on the basis that he held a money decree. article 181 of the limitation act is therefore applicable. the lower court has held that the proper article under which the application should be made is article 183. whichever article is applied, the petitioners are within time in seeking the refund of the amount from the appellant in c.m.a. no. 395 of 1945. the order of the lower court is confirmed and this appeal is.....
Judgment:

Chandrasekhara Aiyar, J.

1. These two connected appeals arise out of an order made by the Subordinate Judge of Coconada on an application by the decree-holders in O.S. No. 26 of 1928 on the file of the Court of the District Munsiff of Cocanada or the refund of a sum of Rs. 1,466-6-0 which the Maharajah of Pithapuram obtained in rateable distribution of the assets of the Zamindar of Polavaram against whom three decrees had been obtained (1) by the Mullapudi people in O.S. No. 92 of 1920, Sub-Court, Coconada, (2) by the Mattapalli people in O.S. No. 26 of 1928 on the file of the District Munsiff's Court, Coconada and (3) by the Maharajah of Pithapuram in O.S. No. 4 of 1924 on the file of the Agency Court, Bhadrachalam. In execution of the decree in O.S. No. 26 of 1928 certain sale proceeds were realised and they were transferred to the Sub-Court, Coconada, which distributed those proceeds to the three decree-holders mentioned above. The Maharajah of Pithapuram got Rs. 1,466-6-0 in this distribution on the footing that his decree was a money decree, which was what the first Court as well as the High Court on appeal held but on appeal to the Privy Council it was held by its judgment dated 28th April, 1936, that he was entitled only to a charge decree having a vendor's lien and that he had no in ht to proceed against the general assets of the judgment-debtor.

2. Assoon as there was an order of rateable distribution in faveur of the Maharajah of Pithapuram. the Mattapalli people filed O.S. No. 487 of 1933 making him and the Mullapudi pepledefen ants and asling for a declaration that they had a first charge over the proceeds and that neither the Maharajah of Pithapuram nerd the Mullapudi people had any right in the sale proceeds. An injunction was sought against them. This suit was dismissed by the Court on the ground that the plaintiffs (Mattapalli people) had no first charge over the proceeds. On appeal which was decided on 6th January. 1938, the decree was confirmed but a declaration was embodied in it to the effect that the Maharajah of Pithapuram was not entitle d to any share of rateable distribution, as it had teen held by the Privy Council by that date that he was only a charge decree-holder and not a money decree-holder.

3. Thereupon the present application, E.A. No. 680 of 1928, was filed by the Mattapalli people on 25th July, 1938, for directing the first respondent to refund the sum of Rs. 1,466-6-0 taken by him together with interest at nine per cent. per annum. To this application the judgment-debtor namely the Zamindar of Pelavaram as well as the Mullapudi people were made party respondents. The Maharajah of Pithapuram raised various defaces to the application one of which was that it did not lie under Section 144 of the Civil Procedure Code, not being in the net re of restitution proceedings. He also pleaded that the application was barred by limitation because the decree in O.S. No. 26 of 1928 was itself barred. The Mullapudi people made common cause with the first respondent and wanted this application to be dismissed. In the counter statement that they filed, they denied the petitioners' sole right to the amount which they wanted to be refunded and that the plaintiffs were stopped from contending that they had no right to a share in the same.

4. The learned Subordinate Judge held that the application was not covered by Section 144 of the Code of Civil Procedure but that he had inherent powers under Section 151 to make an order directing the Maharajah to refund the amount to which it was found that he had no title as the Privy Council had held that it was a charge decree and not a money decree. He further held that so far as the Mullapudi people were concerned they had no right to claim a s are in the amount to be refunded as they had not filed any suit under Section 73(2), as was done by the petitioners, urging that that the distribution of any part of the assets to the first respondent was improper and that they should get their share in the amount wrongfully paid to him.

5. The Maharajah of Pithapuram has preferred C.M.A. No. 305 of 1945 against this order while the Mullapudi people have filed C.M.A. No. 396 of 1945.

6. Preliminary objections have been taken as to the maintainability of this appeal by Mr. P. Somasundaram who says that as the order by the lower Court was made in the exercise of its inherent powers of jurisdiction und r Section 151, there is no appeal from such an order and that at best only revisions would lie. The answer to this argument attempted by Mr. Raghava Rao is that as the Code of Civil Procedure provides under Section 73(2) a remedy by way of suit where a person not entitled to rateable distribution is paid wrongfully a portion of the assets, there is no inherent jurisdiction in a Court to reverse its own orders in any other manner. I do not agree with this contention. The remedy by way of suit should oftentimes involve much mere delay and expense than an application. While the existence of such a remedy ma be a ground for the Court whose inherent jurisdiction is invoked to say that it will not exercise such jurisdiction and that the party may file a suit, there is no justification in depriving a Court of its inherent jurisdiction to pass appropriate orders reversing, where the ends of justice so require, its own wrong orders based on assumptions which later on have been proved to be b sales. To accept the appellant's contention is to tie down the hands of the Court and throw upon the parties needlessly burdensome litigation.

7. While I am prepared to uphold the preliminary objection that no appeals lie from an order made by the lower Court under its inherent jurisdiction, I do not think it necessary or proper to scotch them on this ground. There can be no objection to these appeals being treated as revision petitions, and the merits and points in issue being gone into on this basis.

8. The Maharajah of Pithapuram, the appellant in G.M.A. No. 395 of 1945 has no merits whatsoever in his favour. He has got in his hands money to which he is not entitled according to the decision of the Privy Council and he must bring it back unless there is some point of law which entitles him to escape this liability. I am not able to find any such escape for him. That he was not entitled to get this money was held by the Privy Council as stated already. There was again a declaration in the suit O.S. No. 487 of 1933, filed by the petitioners to the same effect. It is no use for him to plead that the decree in O.S. No. 26 of 1928 which the petitioners have obtained is barred or has been held to be barred in some previous stage of the proceedings. We are not concerned with that decree. The application has been filed within three years from the date of the order of the Privy Council holding that the appellant is not entitled to a money decree but only to a charge decree. This order confers upon the petitioners the right to apply for refund of the amount paid on the basis that he held a money decree. Article 181 of the Limitation Act is therefore applicable. The lower Court has held that the proper article under which the application should be made is Article 183. Whichever article is applied, the petitioners are within time in seeking the refund of the amount from the appellant in C.M.A. No. 395 of 1945. The order of the lower Court is confirmed and this appeal is dismissed with costs of respondents 1 to 4.

9. Next coming to C.M.A. No. 396 of 1945, the connected appeal, objection has been raised by Mr. Somasundaram that the appellants are not entitled to any share in the amount to be refunded by the Maharajah of Pithapuram as they did not seek to set aside the order distributing a portion of the assets to him and as in the counter statement that they filed to this application they sided the first respondent and asked that the petitioners' application for refund should be dismissed as bare 1 by time and as incompetent for other reasons. As pointed out already the question is not so simple as this, for, though it may be that the Mullapudi people did not file any suit, as the Mattapalli people did, to have the rateable distribution order set aside, it is undeniable that in this application they have repudiated the claim of the petitioners to the whole amount and have further pleaded that the petitioners were stopped from denying their rights to rateable distribution, which must refer only to the sum which is now in dispute. Whether by reason of their not having filed a suit under Section 73(2) Civil Procedure Code within the period of limitation, it can be said that they had lost the right to get their share of the amount now ordered to be refunded is a question that has not received adequate attention or consideration at the hands of the lower Court. Assuming that the decree which they obtained in O.S. No. 26 of 1928 is barred, would any rights accrue to them as a result of the order of the Privy Council, and if so would an enforcement of that order, by asking the first respondent to disgorge what he had got, enure for their benefit also or whether they are prevented from claiming any share because the petitioners had alleged in the suit that thy had brought (O.S. No. 487 of 1933) as well as in the present application that they alone are entitled to the amount are points that must be considered. I suggested to Mr. Sundaram Iyer, the learned advocate for the appellants in C.M.A. No. 396 of 1945, that his clients can file an application for rateable distribution seeking a share in the amount now directed to be refunded and have these questions considered in these proceedings. He is agreeable to do so. This would give an opportunity to the Mattapalli people to raise any objections they may think as to the maintain ability of such an application and as to its merits. Subject therefore t this reservation, the right of the Mullapudi people to file an independent application, their C.M.A. No. 396 of 1945 is also dismissed with costs of 1 respondents 1 to 4.


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