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Sethurayar Vs. Shanmugam Pillai and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Judge
Reported in(1898)ILR21Mad353
AppellantSethurayar
RespondentShanmugam Pillai and anr.
Cases ReferredTaylor v. Plumer
Excerpt:
specific relief act - act i of 1877, section 56, clause (b)--trusts act--act ii of 1882, sections 91, 95--civil procedure code--act xiv of 1882, section 232--decree obtained on a benami mortgage by benamidar--suit by real mortgagee--declaration--injunction. - - that court thinks fit, the decree may be executed in the samemanner and subject to the same conditions as if the application of the code of civil procedure, which has been held applicable to a case like the present umasoondury dassy v......clause (b) of the specific relief act; but, if the plaintiff's case be true, he is entitled to the declaration granted by the munsif subject to the plaintiff reimbursing the first defendant the costs incurred by him in obtaining the decree.4. it was contended that such declaration would be fruitless and should not be granted, but we do not agree in this view. such a declaration being binding on the parties would entitle the plaintiff to apply for the execution of the decree under section 232[if a decree be transferred by assignment in writing, or by operation of law, from the decree-holder to any other person, the transferee may application by transferee apply for its execution to the court which passed it; and, if of decree. that court thinks fit, the decree may be executed in the.....
Judgment:

1. Upon the allegations of the plaintiff, his case may be considered on the footing either that the first defendant was his agent, or that he was his benamidar. If first defendant was an agent, the plaintiff is entitled to obtain the advantage gained by the first defendant in securing a decree upon the bond. Whether first defendant's action in obtaining the decree was rightful or wrongful is immaterial. This has long been established law Taylor v. Plumer 3 M. & S. 562.

2. If first defendant was a benamidar, the result would be the same, for he would be in the position of a trustee Sections 91 and 95 of the Indian Trusts Act, 1882.

3. The only remaining question is as to the relief to be given. The injunction prayed for cannot be granted under Section 56, Clause (b) of the Specific Relief Act; but, if the plaintiff's case be true, he is entitled to the declaration granted by the Munsif subject to the plaintiff reimbursing the first defendant the costs incurred by him in obtaining the decree.

4. It was contended that such declaration would be fruitless and should not be granted, but we do not agree in this view. Such a declaration being binding on the parties would entitle the plaintiff to apply for the execution of the decree under Section 232[If a decree be transferred by assignment in writing, or by operation of law, from the decree-holder to any other person, the transferee may Application by transferee apply for its execution to the Court which passed it; and, if of decree. that Court thinks fit, the decree may be executed in the samemanner and subject to the same conditions as if the application of the Code of Civil Procedure, which has been held applicable to a case like the present Umasoondury Dassy v. athBrojon Bhuttacharjee I.L.R. 16 Cal.347.

5. The Judge was therefore wrong in holding that this suit was not maintainable. We accordingly reverse his decree and remand the appeal for disposal on the merits in the light of the above observations. Costs will abide and follow the result.

6. No order is necessary on the memorandum of objections as the lower Court's decree has been reversed.


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