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Appa Rao and anr. Vs. Krishna Ayyangar and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil;Property
CourtChennai
Decided On
Judge
Reported in(1902)ILR25Mad537
AppellantAppa Rao and anr.
RespondentKrishna Ayyangar and anr.
Excerpt:
civil procedure code - act xiv of 1882, section 244--execution of decree passed on usufructuary mortgage--continuation of possession by mortgagees subsequently to decree--claim to set off profits thus accrued from decree amount--application for order absolute--transfer of property act--act iv of 1882, section 89. - .....decree instead of executing it as it stands. the district judge is also wrong in holding that the present application cannot be granted in the absence of a prior order absolute for sale. it is stated by the appellant that such an order for sale was passed on the 13th december 1897, but whether that is so or not, the present application, in which the decree-holder states that there has been default in payment of the decree amount and applies for sale, is in our opinion an application for an order absolute for sale.2. the respondent raises before us several objections by way of limitation and otherwise, to the grant of the application, but these are not matters which we need decide at this stage.3. we allow the second appeal, with costs, and remand the appeal to the district judge for.....
Judgment:

1. The order of the District Judge cannot be sustained. He is in error in holding that an account of the profits of the land should now be taken for the purpose of being set off against the amount decreed. This is going behind the decree instead of executing it as it stands. The District Judge is also wrong in holding that the present application cannot be granted in the absence of a prior order absolute for sale. It is stated by the appellant that such an order for sale was passed on the 13th December 1897, but whether that is so or not, the present application, in which the decree-holder states that there has been default in payment of the decree amount and applies for sale, is in our opinion an application for an order absolute for sale.

2. The respondent raises before us several objections by way of limitation and otherwise, to the grant of the application, but these are not matters which we need decide at this stage.

3. We allow the second appeal, with costs, and remand the appeal to the District Judge for disposal according to law.


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