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Nanduri Saradamba Vs. Konala Gavaramma and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai High Court
Decided On
Case NumberA.A.A.O. Nos. 78 of 1947 and 102 of 1948 and C.R.P. Nos. 672 of 1947 and 241 of 1949
Judge
Reported inAIR1951Mad663a; (1950)2MLJ814
ActsCode of Civil Procedure (CPC) , 1908 - Sections 47 - Order 21, Rule 90
AppellantNanduri Saradamba
RespondentKonala Gavaramma and anr.
Appellant AdvocateT. Satyanarayana, Adv.
Respondent AdvocateO. Chinnappa Reddi, Adv.
Cases ReferredMadan Theatres v. Dinshaw
Excerpt:
- - after all, a ct of justice, equity & good conscience, (every ct in the indian republic is that) should not stand on mere technicalities, especially when these technicalities are also no real bar, as here. this is not allowable under the law, which looks not to caste, creed, colour, class, sex or country, though it is well known that, sometimes, our cts view minors, women, temples, trusts etc......against her & in favour of gavaramma, the decree-holder, for more than rs. 3400, on 28-8-1941. the final decree was passed on 16-2-1945. the sum due by the judgment-debtor at the time of the sale, on 11-3-1946, of 2 acres 40 cents, out of the mtged properties amounting to 6 acres 16 cents, was about rs. 4250, according to her counsel, & rs. 4500, according to the decree-holder's counsel. the 2 acres 40 cents were, admittedly, sold on 11-3-1946, for rs. 4150, leaving only a sum of rs. 100 as balance, according to the judgment debtor, & a sum of rs. 300 or rs. 350 as balance, according to the decree-holder. the judgment debtor alleged that there was an agreement entered into with her by the decree-holder some time in march 1944--the exact date is not given--agreeing to take rs. 2700 in.....
Judgment:

Panchapakesa Ayyar, J.

1. These are all connected matters & present a story of tangled & chronic litigation. The facts, in a nut-shell, are these. Saradambal is the judgment-debtor in O. S. No. 153 of 1940, a mtge suit. The preliminary decree in suit was passed against her & in favour of Gavaramma, the decree-holder, for more than Rs. 3400, on 28-8-1941. The final decree was passed on 16-2-1945. The sum due by the judgment-debtor at the time of the sale, on 11-3-1946, of 2 acres 40 cents, out of the mtged properties amounting to 6 acres 16 cents, was about Rs. 4250, according to her counsel, & Rs. 4500, according to the decree-holder's counsel. The 2 acres 40 cents were, admittedly, sold on 11-3-1946, for Rs. 4150, leaving only a sum of Rs. 100 as balance, according to the judgment debtor, & a sum of Rs. 300 or Rs. 350 as balance, according to the decree-holder. The judgment debtor alleged that there was an agreement entered into with her by the decree-holder some time in March 1944--the exact date is not given--agreeing to take Rs. 2700 in full quit & allowing her to pay the amount before the end of April 1946, & promising that the final decree proceedings & execution would not be taken but till the end of April 1946. But the saic' agreement,' according to her, was broken b; the decree-holder, when she got a final decree, behind her back, on 16-2-1945, & took out execution & brought her properties to sale on 11-3-1946. One curious thing here is that the agreement itself was not produced in Ct by the ludgment-debtor & that not one pie was paid actually by her before the end of April 1946 to the decree-holder or deposited into Ct, though it is alleged that the judgment-debtor once tried to take Rs. 1500 to the decree-holder but without succeeding in making her accept that sum. What is more, the judgment-debtor's attempt to get the final decree (alleged to have been passed without notice to her) set aside collapsed & the final decree became conclusive ten months before the filing of E. A. No. 4 of 4946 to record the alleged arrangement, of March 1944. The judgment-debtor tried in both the lower Cts to get an enquiry made into this alleged agreement after execution was taken out regarding the final decree; but both the lower Cts held that there was no merit in the appln & that such an appln was not maintainable after the passing of the final decree & the knowledge of the final decree by the judgment-debtor months before. C.M.S.A. No. 102 of 1948 is filed against the order of the lower appellate Ct confirming the first Ct's order refusing to go into this alleged agreement.

2. Mr. Satyanarayana, the learned counsel for the judgment-debtor, relied on the F. B. rulings in 'Chidambaram Chettiar v. Krishna Vathiar', 40 Mad 233: AIR 1918 Mad 1174 , & Papamma v. Venkayya', 58 Mad 994: AIR 1935 Mad 860 , & argued that such an agreement should be enquired into even during the execution proceedings, despite the passing of a decree. But the question really is not that. The question is whether this agreement deserved to be enquired into in the circumstances of this case, where the judgment-debtor knew about the final decree proceedings & did not raise the question then. I am of opinion that this agreement was rightly refused to be gone into by both the Cts, below in view of this & the ruling of the P. C. in 'Madan Theatres v. Dinshaw & Co., Bankers Ltd. , though but for it, it might be 'technically' maintainable. The alleged agreement is of uncertain but ancient date. The time fixed for payment of the alleged Rs. 2700 in full satisfaction has also elapsed without a pie being paid. Four years have gone by, & nothing has been paid. So, there is no question of recording any agreement, compromise or satisfaction in the execution petn proceedings. The agreement itself was not produced in the Cts below. The final decree was passed after sufficient service, & therefore will be binding on the judgment-debtor all whose attempts to get it set aside proved futile. In these circumstances no useful purpose of any kind would have been served by the lower Cts going into this alleged stale agreement of March 1944, even if it was upon to them to do so which I doubt. I, therefore, dismiss C. M. S. A. No. 102 of 1948 with costs. Leave refused.

3. Now I come to the other three matters. The facts relating to these may be briefly stated. The judgment-debtor filed a petn under Order 21 Rule 90, C. P. C. on 8-4-1946, for setting aside the sale of the 2 acres 40 cents of the mtged properties held on 11-3-1946, relying on various grounds. She was asked to furnish sufficient immovable property as security or cash security, & she offered 2 acres 91 cents out of the unsold mtged lands stating that they would be worth seven thousands even after deducting the Rs. 100 due to the decree-holder. An amin of the first Ct valued these 2 acres 91 cents at Rs. 7000 & certified that the only encumbrance on these lands was the sum due to the decree-holder which is admitted by the decree-holder's-counsel before me to have been only Rs. 300 or Rs. 350 at the time the security was offered. Even supposing that these 2 acres 91 cents were only worth at the same rate as 2 acres 40 cents, sold on 11-3-1946, it being admitted that these lands are at least of equal value with the lands sold, their value would be nearly Rs. 5000, &, deducting Rs. 300 or Rs. 350 due to the decree-holder, they would be worth more than Rs. 4500, & should have sufficed as ample security. But, somehow, the first Ct considered that the properties mtged to the decree-holder should not be offered as security, & that cash security should have been given, though I see no distinction in principle between the properties mtged to the decree-holder & properties mtged to others, in the matter of security, & though in this case there was no doubt that the properties offered as security were more than ample to serve as security for this petn under Order 21 Rule 90 of the Code, & no cash security was really necessary. Every order rejecting security has, of course, to be based on sound judicial grounds. Nor was even time given for furnishing cash security after this ample security was rejected offhand. What is even more curious is that the first Ct confirmed the sale on 16-4-1946 even before rejecting the security, nay, even before the Amin's report regard-Ing the test was received on 17-5-1946. It rejected the security only on 5-7-1946 C. R. P. No. 672 of 1947 & C. M. & A. No. 78 of 1947 have been filed against the order rejecting the unregistered petn under Order 21 Rule 90, C. P. C. without any enquiry, after rejecting the security on 6-7-1946. The C. R. P. & C. M. S. A. have both been filed by way of abundant caution owing to the doubt as to which of them would be maintainable in the circumstances C. R. P. No. 241 of 1949 has been filed against the order of the Dist J, West Godavari, dismissing A. S. No. 338 of 1946 confirming the first Ct's order dated 8-7-1946 confirming the sale without enquiring into the petn under Order 21 Rule 90, C. P. C. filed long before the confirmation.

4. After hearing the learned counsel for the judgment-debtor & the learned counsel for the decree-holder, I have no doubt whatever that the first Ct should have accepted the security of 2 acres 91 cents tendered by the judgment detbor & gone into the petn under Order 21 Rule 90, C. P. C. & decided it on the merits, & deferred the confirmation of the sale held on 11-3-1946 till such decision. After all, a Ct of justice, equity & good conscience, (every Ct in the Indian Republic is that) should not stand on mere technicalities, especially when these technicalities are also no real bar, as here. As a Ct of equity, the first Ct could & should have tempered the rigour of law, & rendered 'justice' by accepting the ample security tendered, & numbering the petn under Order 21, Rule 90, C. P, C. & deciding it on merits. Mr. Satyanarayana urged that the judgment-debtor was a helpless & Ignorant 'woman' & so deserved some more consideration than the usual run of litigants. This is not allowable under the law, which looks not to caste, creed, colour, class, sex or country, though it is well known that, sometimes, our Cts view minors, women, temples, trusts etc. with a little extra indulgence. But, here, no extra indulgence was required. The judgment-debtor was entitled as of right under the law to have her security accepted & to have her petn numbered & enquired into.

5. In the result, I set aside the orders of both the Cts below, dismissing the petn, filed by the judgment debtor under Order 21 Rule 90, O. P. C. & direct the Dist Munsif of Tanuku to take the petn under Order 21 Rule 90, C. P. C. on his file, after accepting the security of 2 acres 91 cents tendered & taking a bond in the proper form, & to proceed with it & dispose of it according to law. The confirmation of the sale held on 11-3-1946 is also set aside, & the confirmation will await the disposal of the petn under Order 21 Rule 90, C. P. C. In the circumstances, there will be no orders as to costs in these three matters.

6. Leave refused in C. M. S. A. No. 78 of1947.


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