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Alagappa Chettiar Vs. Muthukaruppan Chettiar - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai
Decided On
Reported inAIR1947Mad305; (1947)1MLJ110
AppellantAlagappa Chettiar
RespondentMuthukaruppan Chettiar
Excerpt:
- .....too must be taken. it is also conceded by mr. kesava aiyangar for the respondent that in an application for transmission it is not necessary for the judgment-debtor to object to the executability of the decree against a particular item of property ; because that would not be a valid objection to the transmission of the decree. the transmitting court would naturally say that such objection could be considered when an execution petition had been filed to execute the decree against that particular property. it would not be a question to be discussed and decided in an application for transmission.3. the objections taken by the appellant were (1) that the petition was not maintainable for want of leave of the insolvency court; (2) that by reason of the discharge order, his liability.....
Judgment:

Horwill, J.

1. This is an appeal against the order of the Subordinate Judge of Devakottai ordering execution of the decree in O.S. No. 122 of 1931 on an application, E.P. No. 126 of 1944, overruling the objection of the appellant to its executability against the property against which the decree-holder now seeks to execute his decree.

2. The lower Court overruled the objections of the appellant on the ground that he could and should have raised his objections in E. A. No. 638 of 1940, a petition to add the present appellant and his brothers as legal representatives of their deceased father, the first defendant in the suit, and to transmit the decree to the Court of the District Munsiff of Tiruvannamalai for concurrent execution. It is conceded by Mr. Muthukrishna Aiyar on behalf of the appellant that in an application to transmit, a judgment-debtor must raise any objections he has to the general executability of the decree. He must, for example, plead discharge, or, if the decree is not executable on the ground that the Official Receiver has not been brought on record, that objection too must be taken. It is also conceded by Mr. Kesava Aiyangar for the respondent that in an application for transmission it is not necessary for the judgment-debtor to object to the executability of the decree against a particular item of property ; because that would not be a valid objection to the transmission of the decree. The transmitting Court would naturally say that such objection could be considered when an execution petition had been filed to execute the decree against that particular property. It would not be a question to be discussed and decided in an application for transmission.

3. The objections taken by the appellant were (1) that the petition was not maintainable for want of leave of the insolvency Court; (2) that by reason of the discharge order, his liability became extinguished, and (3) that the Official Receiver had disposed of the one-fourth share of the first defendant and the one-fourth share of the appellant and that the land was therefore no longer available for execution. He also raised an objection as to limitation which, it is now admitted here, has no substance. Of the other objections raised, the objection as to non-maintainability for want of leave of the insolvency Court and the objection that the liability had become extinguished by reason of the discharge order were objections that could and should have been taken in the application for transmission of the decree to the Court of the District Munsiff of Tiruvannamalai; and the appellant was therefore precluded from raising them in the lower Court.

4. There remains the objection that the decree cannot be executed against the particular property because the Official Receiver had already disposed of the shares of the appellant and his father. That was not a question that had necessarily to be raised in the application to transmit the decree, and therefore the appellant is not precluded from raising this objection in this petition. It however seems to us that there is no substance in this objection, and that it is unnecessary to allow the appeal on this ground. If the appellant has no interest in these properties, as he alleges, then he can raise no objection to the sale of these properties. If the transfers in favour of the Official Receiver were not valid and he has still an interest in the properties, then his interest is available for execution in these proceedings.

5. The appeal is dismissed with half the costs of the respondent.


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