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Muthuveeranna Chettiar Vs. Muthuvenkatarama Chettiar and ors. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtChennai High Court
Decided On
Case NumberA.A.A.O. No. 238 of 1946
Judge
Reported inAIR1951Mad711; (1951)IMLJ196
ActsLimitation Act, 1908 - Article 182
AppellantMuthuveeranna Chettiar
RespondentMuthuvenkatarama Chettiar and ors.
Appellant AdvocateK.V. Srinivasa Iyer, Adv.
Respondent AdvocateS. Ramachandra Iyer and ;E.A. Viswanathan, Advs.
Cases ReferredHemangini Dassee v. Kumode Chunder
Excerpt:
.....rents from occupants and deposit same in court and ep amount be paid out of those deposits - decree holder appointed as receiver and on same day ep was closed - duty of court to dispose of ep really, effectively and validly in one of ways known to law - ep should not be closed for statistical purposes in anxiety for quick disposal - ep could be terminated validly by court only by waiting till receiver had collected enough to pay amount claimed and made reports required by court - mere appointment of receiver had not disposed relief asked for - held, original ep improperly closed - appellant entitled to have it proceeded with. - - 272 of 1934 praying for the recovery of maintenance which bad accrued due till 1-1-1934 & costs of suit & execution. and pursue other remedies like..........dist. j., tiruchirapalli, dated 13-2 1946, in a. s. no. 321 of 1943 filed against the order of the dist. munsif of tiruchirapalli, dated 8-7-1943, in e. p. no. 505 of 1943 in o. s. no. 251 of 1932. the facts are briefly these :2. one kanakavallithayarammal sued her step son, muthuvenkatarama chettiar, & his minor son, bhaskara chettiar, for maintenance in o. s. no. 251 of 1932, district munsif's ct., tiruchirapalli. the suit was decreed on 29-11-1932. both the defts. were directed by the decree tp pay, on or before 29-3-1933, the maintenance accrued due to the pltf. at rs. 14 per month from 1-7-1931 till the date of the decree, a future maintenance to the pltf. at rs. 14 p.m. from the date of the decree during the life of the pltf., at the end of each year, & pltf.'s costs rs. 85-2-6......
Judgment:

Panchapakesa Ayyar, J.

1. This civil misc. second appeal is against the order of the Dist. J., Tiruchirapalli, dated 13-2 1946, in A. S. No. 321 of 1943 filed against the order of the Dist. Munsif of Tiruchirapalli, dated 8-7-1943, in E. P. no. 505 of 1943 in O. S. No. 251 of 1932. The facts are briefly these :

2. One Kanakavallithayarammal sued her step son, Muthuvenkatarama Chettiar, & his minor son, Bhaskara Chettiar, for maintenance in O. S. no. 251 of 1932, District Munsif's Ct., Tiruchirapalli. The suit was decreed on 29-11-1932. Both the defts. were directed by the decree tp pay, on or before 29-3-1933, the maintenance accrued due to the pltf. at Rs. 14 per month from 1-7-1931 till the date of the decree, A future maintenance to the pltf. at Rs. 14 p.m. from the date of the decree during the life of the pltf., at the end of each year, & pltf.'s costs Rs. 85-2-6. The decree-holder, Kanakavallithayarammal, filed E. P. No. 272 of 1934 praying for the recovery of maintenance which bad accrued due till 1-1-1934 & costs of suit & execution. The amount claimed was Rs. 518-13-0. The reliefs claimed in that E. P. were : (1) to attach the arrears of rents of Rs. 30 due at Rs. 15 each, per month from Ponnusami Pillai & Balusami Naidu, two tenants, regarding two shops belonging to the judgment-debtors; (2) forcollecting the future rents from these two shops every month from them & depositing them regularly into Ct. with correct accounts, by appointing petnr. or anybody else, as the Ct. thought fit, as receiver for that purpose; (3) out of the rents thus attached, or collected by the receiver, the amount claimed in the E. P. to be paid to the petnr., & for that purpose, accounts of collections to be filed regularly every month by the Receiver appointed. The Dist. Munsif ordered the attachment of the arrears of rents payable by Ponnusami Pillai & Baiusami. The E.P. was filed in January 1934. On 11-5-1934, Ponnusami Pillai appeared in Ct. & said that he had paid advance rent enough to cover the rent payable till 15-5 1934 on which date he was quitting the premises. The fact has not now been disputed & Mr. Srinivasa Aiyar, for the applts. assures me that Ponnusami Pillai actually quitted the shop on 15-5-1934. Balusami Naidu appeared in Ct. on 28-6-1934 & stated that he had been a tenant under the judgment-debtors only till 15-4-1934, & had paid up his rent in full till then, & that nothing was payable by him, & that, indeed, the judgment debtors owed him some money out of the advance of rent paid by Mm, & that he had attorned after 15-4-1934, to the knowledge of the judgment-debtors to the mtgee. of the shop, one Muthulakshmi Ammal, from them & executed a registered lease-deed in her favour, & so could not be made to pay any rent into Ct. under this E. P. The Disb. Munsif found the contentions of these two tenants to be too complicated to be gone into in the E. p. So, he appointed the decree-holder herself, as Receiver, in E. A. No. 1274 of 1934, a petn. filed by the petnr. in that E. P. for the appointment of Receiver on 28-7-1934, & directed her to collect the arrears of rents from the two shops in question filing suits, if necessary, against Ponnusami Pillai & Balusami Naidu if they were really liable & to collect the future rents from the premises, from those liable, & deposit the amounts in Ct. to the credit of the E.P. as prayed for. Curiously enough, he 'closed' E.P. No. 272 of 1934 on 28-7 1934 itself without waiting for the Receiver to collect the arrear rents or future rents or to report inability to collect anything, or about the liability of Ponnuswami or Balusami & the advisability of filing suits against them & passing suitable orders, or asking or allowing the decree-holder to amend the E. P. and pursue other remedies like bringing the properties to sale. Sale had not been asked for in the first instance as the E. P. amount was small & was expected to be easily recovered from the rents. The decree-holder did not apply for permission to file a suit, & was also not able be collect a pie as rent. She was, it issaid, a helpless & ignorant woman. She assigned her rights to the arrears of maintenancetill 20-2-1942 to the present petnr., finally, indespair. He filed E. P. No. 505 of 1943 for recognising him as the assignee decree-holder;for treating this petn. as a continuation of theE. P. No. 272 of 1934, which, he contended, hadbeen improperly closed for statistical purposes;for continuing the old receiver & making hercollect the rents or for discharging her & appointing another receiver; & for the sale of allthe charged properties to realise the E. P.amount which now amounted to nearly Rs. 1900odd.

3. The learned Dist. Munsif of Tiruchirapalli held that E. P. No. 272 of 1934 had not been improperly 'closed' for statistical or other collateral purposes; that it was properly 'closed' after granting or refusing all the reliefs prayed for, & that, therefore, it could not be revived; & that E. P. No. 505 of 1943 should be treated not as a continuation of E. P. No. 272 of 1934, as prayed for by the petnr., but as an entirely new petn. & only the amount claimable under the limitation law under this E. P. should be claimed. He dismissed the E. P. with costs because the petnr. was persisting in his plea that E. P. No. 212 of 1934 bad been improperly closed, & it was clear that he would not amend E. P. No. 505 of 1943, treating it as a new E. P. & reducing the amount to the amount claimable on that basis.

4. On appeal, by the present applt. the learned Dist. J. of Tiruchirapalli agreed with the Dist. Munsif, that E. P. No. 272 of 1934 had not been shown to have been improperly or irregularly 'closed' & that it could not, therefore, be revived & continued. But he gave the applt. an opportunity to amend E. P. no. 505 of 1943 so as to convert it into a fresh petn. claimable on that basis. This civil misc. second appeal is against that judgment & decree (inA. S. No. 321 of 1943).

5. After the filing of the second appeal, the first resp. Muthuvenkatarama Chettiar, the step-son of Kanakavallithayarammal, was sentenced to death for murder, & hanged. The second resp. Bhaskara Chettiar, who was a minor when the E. P. was filed, became a major even by the time of A. S. No. 321 of 1943. He was ex parte in the appeal. Mr. E.A. Viswanathan presented a vakalat for him in this Civil Misc. S. A. at first, but did not represent it when it was returned to him for rectifying certain defects. So. Mr. E.A. Viswanathan does not represent him, & does not want to file a proper vakalat & represent him. There was thus no vakil legally on record, & as no other vakil appeared for BhaskaraChettiar, the second resp. was served by substituted service. He has remained absent & has been declared ex parte. The third & fourth resps. are also absent, & ex parte in this Civil Misc. 3. A. The 4th resp. was ex parte even in A. S. no. 321 of 1943. The 3rd resp. had appeared by vakil there. Kanakavallithayarammal is still alive, as admitted by Mr. Srinivasa Aiyar, but has no interest in this civil Misc. S. A. Hence, only the counsel for the applt. argued. Nona of the resps. were present in person or by counsel.

6. It is clear to me, after a perusal of the records, & after hearing Mr. Srinivasa Aiyar, for the applt. that both the lower Cts. were wrong in holding that E. P. No. 272 of 1934 had been validly terminated in one of the ways known to law. The correct principle has been laid down by the Dist. Munsif, Tiruchirappalli, viz., that if an execution petn. is 'struck off' 'lodged', 'recorded' or 'closed', while yet the reliefs prayed for, or some of them, remain undisposed of, without being covered by final orders either granting or refusing those reliefs, then the petn. will continue to be on the file of the Ct. despite its being 'struck off', 'lodged', 'recorded' or ' closed'. But be went wrong in considering that all the reliefs prayed for in E. P. no. 272 of 1934 had been disposed of by 28-7-1934, when the Dist. Munsif appointed the decree-holder as receiver & 'closed' the E. P. by a final order granting or refusing them. One of the reliefs prayed for was that a receiver should be appointed to collect the past and future rents of the two shops from Ponnusami & Balasami or any others occupying those shops & deposit the same in Ct. & that the E. P. amount be paid out of those deposits. But the learned Dist. Munsif simply appointed the decree-holder as a receiver & directed her to collect the rents from the lessees of the two shops & pay them into Ct. (for payment towards the E. P. dues) seeking the Ct's permission to file suits if necessary against Balusami & Ponnuswami, & closed the E. P on the very day he appointed the receiver. This closing could only have been for statistical purposes & could not be deemed to be a valid order according to law terminating the E. P. or a final order regarding the reliefs prayed for. The E. P. had asked for the appointment of a receiver to collect the rents & pay the decree-holder's dues. As held in Hemangini Dassee v. Kumode Chunder, 3 C. W. N. 139 : 26 Cal. 44l in a decree for maintenance charged on immovable property, a receiver should generally be appointed in suitable cases to realise the E. P. dues. But the E. P. could be terminated validly by the Ct. (as apart from consent ofparties) only by waiting till the receiver had collected enough to pay the amount, (here Rs. 518-18-0) claimed & made the reports required (like the desirability of filing suits), as a receiver is an officer of Ct. The mere appointment of the decree-holder as a receiver (in which capacity she was an officer of Ct.) by itself, had not disposed of the relief asked for in E. P. No. 272 of 1934. She did not report whether Ponnusami or Balusami deserved to he sued for arrears or do anything else. In the circumstances, it served no useful purpose at all as the woman could not collect a pie & as Ponnusami & Balusami could not evidently be sued as they were not liable & as the tenant who succeeded Ponnusami paid nothing to the receiver, & the judgment-debtors went on collecting the rents merrily ignoring the helpless receiver. Mr. Srinivasa Aiyar urges that no receiver's account was kept by the Dist. Munsif regarding this E. P. to watch the collections & ensure the satisfaction of the E. P. dues from them. Nor did the Ct. give any directions to the receiver. It appointed the receiver & closed the E. P. that very moment. The decree-holder gained little by this ephemeral act. It was in the circumstances, like closing the E. P. after an order to attach & before sale proceedings. The appointment was thus only a pretest to close the E. P. at once. Nor did the decree-holder want the E. P. to be closed; nor was the E. P. dismissed owing to impossibility of collecting anything from the lessees of the shops as, for instance, on the ground that the shops did not belong to the judgment-debtors or had been validly alienated.

7. It is the clear duty of a Ct. to dispose of an E. P. really, effectively & validly in one of the ways known to law. It should not close it for statistical purposes in its anxiety for quick disposal. The law is there to give redress & relief & not for nominal & quick disposals giving no relief or redress. I hold that E. p. No. 272 of 1934 was improperly closed, for statistical or other purposes, & had not been really, effectively & validly terminated by one of the methods known to law, & that it must be deemed to be, therefore, still pending, & that the applt. is entitled to have it proceeded with, as the assignee-decree-holder, by reminding the Ct. about it, as he did in E. P. No. 505 of 1943. His E. P. (E. P. no. 505 of 1943) is a composite one. It comprises not only a claim to Rs. 518-13-0 claimed in E. P. No. 272 of 1934, the amount claimable on the basis of treating this E. P. as a fresh E. P. but also a large sum which had become barred by limitation in between the two E. Ps. So, it has to be split up into two 33. Ps. to be separately proceeded with.

8. In the end, therefore, I set aside the judgment & decree of the Dist. J., Tiruchirapalli in A. S. No. 321 of 1943 & direct the Dist. Munsif, Tiruchirapalli, to restore E. P. No. 272 of 1934 to file & proceed with it till it is terminated in a way known to law, by either appointing a fresh receiver or by sale of the properties, & to allow the petnr. to amend E. P. No. 505 of 1943, treating it as a fresh E. P. & claiming therein only the maintenance amount due from 3-6-1939 till 20-2-1942. The E. P. was filed only on 3-6-1942, & of course, only the maintenance due from 3-6-1939 could be claimed therein under the law of limitation. The assignment was on 20-2-1942 & of course, the decree-holder could not assign future maintenance. That is how the period of claim in E. P. No. 505 of 1943 bas been fixed by me as from 3 6-1939 to 20-2-1942. In the circumstances, I direct all the parties to bear their own costs in A. S. No. 321 of 1943 & here, themselves, but direct the Dist. Munsif, Tiruchirapalli, to pass suitable orders regarding costs in both the E. Ps. when disposing of them afresh.


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