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Vythianada Aiyar Vs. Vythianada Aiyar, Alias Narayanappa Aiyar, Insane Represented by Mr. R. Srinivasa Aiyar - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Judge
Reported in4Ind.Cas.1040
AppellantVythianada Aiyar
RespondentVythianada Aiyar, Alias Narayanappa Aiyar, Insane Represented by Mr. R. Srinivasa Aiyar
Cases ReferredAnando Kishore Das Bakshi v. Anando Kishore
Excerpt:
execution - mesne profits undetermined by decree--razinama--whether razinama capable of execution as part of the decree. - .....land.2. the amount of mesne profits was left undetermined by the decree and to that extent the suit remained undisposed of. in effect there still remained one issue for disposal and it was open to the parties to adjust that part of the suit by a lawful compromise. the cases to which the advocate-general drew our attention support this view of the matter. radha prasad singh v. lal sahab rai 17 i.a. 150; muhammad umarjan khan v. zinat begum 25 a.v 385; anando kishore das bakshi v. anando kishore 14 c. v 50. the decree made in terms of this compromise can be executed. we do not agree with the district judge that it has become impossible to fulfil the contract. no doubt there is an obstacle which prevents the immediate execution of the decree by sale of the land but until it is showed.....
Judgment:

1. We are unable to accede to the contention that it was beyond the power of the Court to execute as a part of the decree the agreement of the parties that the mesne profits should be recoverable by execution first against the land described as the 3rd sethi land.

2. The amount of mesne profits was left undetermined by the decree and to that extent the suit remained undisposed of. In effect there still remained one issue for disposal and it was open to the parties to adjust that part of the suit by a lawful compromise. The cases to which the Advocate-General drew our attention support this view of the matter. Radha Prasad Singh v. Lal Sahab Rai 17 I.A. 150; Muhammad Umarjan Khan v. Zinat Begum 25 A.V 385; Anando Kishore Das Bakshi v. Anando Kishore 14 C. V 50. The decree made in terms of this compromise can be executed. We do not agree with the District Judge that it has become impossible to fulfil the contract. No doubt there is an obstacle which prevents the immediate execution of the decree by sale of the land but until it is showed that that obstacle cannot be removed the execution cannot be said to have become impossible. Indeed it was not contended before us that the contract is impossible of fulfillment but that we ought to construe the agreement as containing a condition that if the land is not immediately available for execution, the plaintiff is entitled to proceed with his other remedies. We are unable to read this condition into the razinama. The application for execution against the person of the 1st defendant was, therefore, in our opinion premature and we allow the appeal with costs here and in the lower Appellate Court and restore the District Munsif's order dismissing the petition.


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