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Thandavan Chettiar and anr. Vs. U.K. Unnalachan - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported inAIR1934Mad435
AppellantThandavan Chettiar and anr.
RespondentU.K. Unnalachan
Cases ReferredProsunno Kumar Sanyal v. Kali Das Sanyal
Excerpt:
- .....to the suit must proceed by way of appeal by virtue of section 47 and the non-party by way of suit by virtue of order 21, rule 63. in the obiter dictum at the end of u kala v. ma hnin u a.i.r. 1927 rang 137 it is assumed that the claim was not made in execution, (see bottom of p. lid) which distinguishes it from our case, though why this assumption is made we do not understand. goba nathu v. sakharam taju a.i.r. 1920 bom. 223 proceeds on the rights of the auction purchaser. we see no absurdity, in one party proceeding by way of suit and another by way of appeal; the two proceedings could ordinarily be linked: while if it is a district or subordinate court that is executing the decree1 against a party to the suit, its jurisdiction should not be taken away at the party's own instance.....
Judgment:

Jackson, J.

1. We are not prepared to hold that Walsh, J., has erred. If two persons, one of whom is a party to the suit and one not a party, prefer a claim under Order 21, Rule 58, the party to the suit must proceed by way of appeal by virtue of Section 47 and the non-party by way of suit by virtue of Order 21, Rule 63. In the obiter dictum at the end of U Kala v. Ma Hnin U A.I.R. 1927 Rang 137 it is assumed that the claim was not made in execution, (see bottom of p. lid) which distinguishes it from our case, though why this assumption is made we do not understand. Goba Nathu v. Sakharam Taju A.I.R. 1920 Bom. 223 proceeds on the rights of the auction purchaser. We see no absurdity, in one party proceeding by way of suit and another by way of appeal; the two proceedings could ordinarily be linked: while if it is a district or subordinate Court that is executing the decree1 against a party to the suit, its jurisdiction should not be taken away at the party's own instance by coupling himself with a non-party. The importance of giving due scope to Section 47 is noted by the Judicial Committee in Prosunno Kumar Sanyal v. Kali Das Sanyal (1892) 19 Cal. 683. This Letters Patent appeal is dismissed with costs.


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