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T. Venkatasubba Mudali Vs. Manickammal and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported inAIR1926Mad582; (1926)50MLJ364
AppellantT. Venkatasubba Mudali
RespondentManickammal and anr.
Cases Referred and Ramanathan Chettiar v. Venkatachalam
Excerpt:
- - it is clearly a case distinguishable from chidambaram chettiar v......37 mlj 356 in which it is adopted in the clearest terms as inherent in and flowing from the full bench decision and veluthevan v. krishnaswami reddi (1924) 48 mlj 277 to which one of us was a party. the other set of cases springs from the ruling in arumugam pillai v. krishnaswami naidu : (1920)39mlj222 but before that is considered, reference may be made to the case in singa raja v. pethu raja : (1918)35mlj579 that case turned on a rather strict interpretation of o.34 and not on this general principle, and no reference was made either to chidambaram chettiar v. krishna vathiyar (1916) 32 mlj 13 or arumugam pillai v. krishnanvami naidu : (1920)39mlj222 in arumugam pillai v. knshnaswami naidu : (1920)39mlj222 which was decided in 1920, one learned judge held that chidamabram chettiar v......
Judgment:

Wallace, J.

1. The point for decision is whether it is open to a judgment debtor to plead in bar of execution of a decree against him a predecree arrangement that the decree was not to be executed. The Lower Court has held that it was not so open to him, relying on three decisions of this Court, which in my view, so far as they may be used to support his view, run counter to the general trend of decisions in this Court, The most important decision on this point is the Full Bench case in Chidambaram Chettiar v. Krishna Vathiyur (1916) 32 MLJ 13 The question referred to the Full Bench there was whether a predecree arrangement to postpone the execution of a decree for a certain time can be pleaded as a bar to immediate execution. Two learned Judges of the Full Bench held that it could, and another learned Judge differed. The former based their decisions on the principle stare decisis, the previous cases relied on by them and on which they elected to stand being Rama Aiyan v. Srinivasa Pattar : (1895)5MLJ218 Rukmant Ammal v. Krishnamachariar (1911) 9 MLT 464 Krishnamachariar v. Rukmani Ammal : (1905)15MLJ370 and Subramania Pillai v. Kumaravelu Ambalam ILR (1916) M 541 Now, curiously enough, it was not noticed and has been overlooked also in other judgments on this matter that Rama Aiyan v. Srinivasa Pattar : (1895)5MLJ218 is not really in point. The agreement in that case was post decree and not pre-decree. The other three cases lay down in general terms the principle that a pre-decree arrangement that a decree, when obtained, should not be executed can be pleaded in bar of execution. The Rukmani Ammal v. Krishnamachariar ILR 1919 M 541 and Subramania Pillai v. Kumaravelu Ambalam ILR (1916) M 541 follow the Full Bench rulings in Laldas v. Kishordas ILR (1896) 22 Bom. 463 No previous authority was quoted in the Krishnamachariar v. Rukmani Ammal : (1905)15MLJ370 It is clear that these cases lay down a principle wider than the principle raised in the question referred to the Full Bench. In the Full Bench case the question was whether a pre-decree arrangement for a temporary postponement of execution can be pleaded; while in the three cases above-quoted, the general principle was that a pre-decree arrangement not to execute at all can be pleaded. The concurring judgment in the Full Bench proceeded however on the footing that this general principle adopted furnishes the answer to the question raised, although it is not necessary for the decision to go so far as the three cases above quoted. I have no doubt that the concurring Judges did intend to take their stand on the wider principle enunciated in these cases, and that they meant to uphold and confirm that principle and lay down that this Court in doing so was proceeding on the principle of stare decisis.

2. Subsequently to Chidambaram Chettiar v. Krishna Vathiar (1916) 32 MLJ 13 there have been two divergent lines of decisions. One follows the general principle already stated for example Sambasiva Aiyar v. Thirumalairamanujathathachariar (1918) 37 MLJ 356 in which it is adopted in the clearest terms as inherent in and flowing from the Full Bench decision and Veluthevan v. Krishnaswami Reddi (1924) 48 MLJ 277 to which one of us was a party. The other set of cases springs from the ruling in Arumugam Pillai v. Krishnaswami Naidu : (1920)39MLJ222 but before that is considered, reference may be made to the case in Singa Raja v. Pethu Raja : (1918)35MLJ579 That case turned on a rather strict interpretation of O.34 and not on this general principle, and no reference was made either to Chidambaram Chettiar v. Krishna Vathiyar (1916) 32 MLJ 13 or Arumugam Pillai v. Krishnanvami Naidu : (1920)39MLJ222 In Arumugam Pillai v. Knshnaswami Naidu : (1920)39MLJ222 which was decided in 1920, one learned Judge held that Chidamabram Chettiar v. Krishna Fathiyar (1916) 32 MLJ 13 'does not oblige us to extend the principle to the extent required by the appellant's contention.' I would point out that the one case referred to by the learned Judge, Oldfield, J., as the only case appearing in the authorised reports supporting the appellant's contentions before him is Rama Ayyan v. Srinivasa Pattar (1895) 32 MLJ 13 which as I have observed, has no application to a pre-decree arrangement while the learned Judge has overlooked Subramania Pillai v. Kumaravelu Ambalam ILR 1916 M 541

3. Next comes, the case in Mallayya v. Chinna Kottayya (1921) 14 LW 317 which really seems to me hardly in point. It was a case of a presuit, and not of a pre-decree arrangement, which the learned Judges held could and should have been pleaded as an absolute defence to the suit. This was sufficient for the disposal of the case but the learned Judges went on to consider the general question of the right of a party to plead a pre-decree arrangement in bar of executions, and referred to the cases already quoted. The Full Bench case is put aside on the ground set out in Arumugam Pillai v. Krishnaswami Naidu : (1920)39MLJ222 but it is quoted at the end of the judgment as supporting the plea that the agreement in that suit could not be pleaded in bar of execution. It is clearly a case distinguishable from Chidambaram Chettiar v. Krishna Fathiyar (1916) 32 MLJ 13 The next case is Ramanathan Chettiar v. Venkatachalam : AIR1923Mad619 passed in 1923 which was decided on the ground that the agreement there pleaded was more similar to the one in Arumugam Pillai v. Krishnaswami Naidu : (1920)39MLJ222 than to that in Chidambaram Chettiar v. Krishna Fathiyar (1916) 32 MLJ 13.

4. In this divergence of authority I think we are bound to follow the Full Bench ruling which does undoubtedly adopt and follow the general principle laid down in Kukmani Ammal Krishnamachariar (3), Krishnamachariar v. Rukmani Ammal : (1905)15MLJ370 and Subramania Pillai v. Kumaravelu Amba lam ILR (1916) M 541 and hold to the principle which has been followed since 1903 until it was doubted in Arumugam Pillai v. Krishna-szvatni Naidu : (1920)39MLJ222 It is essential that in such matters, there should be uniformity of procedure, and I see no reason to refer the case again to a Full Bench as we have been requested to do.

5. We must therefore reverse the decision of the District Judge and direct him to rehear the case. Costs up to date will abide the result.

Madhavan Nair, J.

6. I concur with my learned brother throughout in his judgment. I have not been convinced by the arguments of Mr. T.R. Ramachandra Aiyar that the decision in Veluthevan v. Krishnaswami Reddi (1924) 58 MLJ 277 to which I was a party does not lay down the correct law. It was held in that case that a judgment-debtor could plead in bar of an execution a pie-decree arrangement between him and the decree-holder that the decree should not be executed. That decision was based upon the Full Bench ruling in Chidambaram Chettiar v. Krishna Vathiyar (1916) 32 MLJ 218 The decision in Krishnamachariar v. Rukmani Ammal : (1905)15MLJ370 Rukmani Ammal v. Krishnamachariar (1911) 9 MLT 464 and Subramania Pillai v. Kumaravelu Ambalam ILR (1916) M 541 which lay down the general principle that an arrangement prior to a decree not to execute the decree at all can be pleaded in bar of an execution furnished the ground for the decision in the Full Bench case. These cases laid down a principle wider than the one raised in the question referred to the Full Bench. There can be no doubt that the learned Judges who decided the case in Chidambaram Chettiar v. Krishna Vathiyar (1916) 40 M 233 accepted the principle of these three cases as correct law. The decision mainly relied upon by Mr. T.R. Ramachandra Aiyar in Arumugam Pillai v. Krishnaswami Naidu : (1920)39MLJ222 as pointed out by my learned brother, refers to Rama Ayyan v. Srinivasa Pattar : (1895)5MLJ218 which has no application to a pre-decree arrangement and overlooks the decision in Subramania Pillai v. Kumaravelu Ambalam ILR (1916) M 541 and apparently brushes aside the decisions mainly relied upon in the Full Bench case on the ground that they do not appear in the authorised reports. The other decisions quoted for the respondent, namely, Singa Raja v. Pethu Raja : (1918)35MLJ579 Mallayya v. Chinna Kottayya (1921)14 LW 317 and Ramanathan Chettiar v. Venkatachalam : AIR1923Mad619 do not advance his contentions in any appreciable degree.

7. In this state of authorities I agree with my learned brother that we are bound to follow the Full Bench ruling, and reverse the decision of the District Judge and request him to re-hear the case. The costs up to date will abide the result.


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