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Periyasami Kone Vs. V.P.R.M. Muthia Chettiar - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai
Decided On
Judge
Reported in(1915)ILR38Mad677
AppellantPeriyasami Kone
RespondentV.P.R.M. Muthia Chettiar
Cases Referred and Purna Chandra Mandal v. Radha Nath Dass I.L.R.
Excerpt:
decree - holder--petition for execution--sale of properties not mentioned in the decree--personal decree--civil procedure code (act v of 1908), order xxxiv., rule 6--application, it necessary--court's power to amend--code of civil procedure (act v of 1903), section 158. - .....(1913) 22 m.l.j., 125.4. the contention of the appellant's learned vakil therefore that the decree-holder ought to go through that farce, even if no interest at all in the properties nos. 2 and 3 ordered to be sold belongs to the mortgagors, cannot be accepted. however, the lower courts have not gone into the question of fact whether the judgment;-debtor had no saleable interest in the properties nos. 2 and 3 ordered to be sold, and we would have to call for a finding from the lower appellate court, if it was necessary for the decision of this case to call for such finding. it is, how-over, unnecessary to do so, as the case has to he disposed of on another ground, which, though not taken in the lower courts, is a question of law depending on the construction of the decree and has.....
Judgment:

1. The view of the Lower Courts that a decree holder is entitled to abandon hie claim against some of the mortgaged properties even after decree so as to enable him to ignore the terms of the decree if those terms direct him to bring those properties to sale before he could proceed against other properties of the judgment-debtor, that view, though in accordance with certain Allahabad decisions, cannot be accepted as sound as it is against the decision of this Court in Manti Kamoji v. Ghodimalla Ramamurthy (1908) 3 M.L.T., 335, which has been recently followed by this Bench in Vardiah v. Raja Perumal Raja Bahadur Appeal against Order No. '257 of 1909.

2. If, of course, the mortgaged properties directed to be sold under the mortgage decree do not belong to the mortgagor, the mortgagee need not be compelled to resort to the farce of bringing them to sale and to undergo the useless delay involved in bringing them to sale, because it is an elementary principle of law that the Court will not do a vain thing, nor will it compel a man to do a fruitless thing.

3. Check Lex nil frustra facit. Lex neminem cogit ad vana seu inutilia. See also Kriahnamachariar v. Bagiammal (1913) 22 M.L.J., 125.

4. The contention of the appellant's learned vakil therefore that the decree-holder ought to go through that farce, even if no interest at all in the properties Nos. 2 and 3 ordered to be sold belongs to the mortgagors, cannot be accepted. However, the Lower Courts have not gone into the question of fact whether the judgment;-debtor had no saleable interest in the properties Nos. 2 and 3 ordered to be sold, and we would have to call for a finding from the Lower Appellate Court, if it was necessary for the decision of this case to call for such finding. It is, how-over, unnecessary to do so, as the case has to he disposed of on another ground, which, though not taken in the Lower Courts, is a question of law depending on the construction of the decree and has been taken before us in the seventh ground of appeal to this Court. To appreciate that ground, the nature of the decree has to be stated. The decree directs 'that the defendants do pay to the plaintiff Rs. 619-1-0, etc...,' and then it proceeds as follows: 'this Court doth further order and decree...that in default of payment...before the date specified the hypothecated property...shall be sold, etc.' A similar decree was construed by a Bench of this Court to which one of us was a party [Raja of Kalahasti v. Varadachariar (1911) 31 M.L.J., 1036 as giving a personal decree against the defendants under which execution at the option of the decree-holder can be had against the persons and other properties of the judgment-debtors without reference to the decree for sale of the mortgaged properties, [if there is thus a personal decree already, no application for another personal decree under Order XXXIV, Rule 6, can be granted. See Dinabandhu v. Mashuda (1912) 16 C.L.J, 318, Dina Nath Mitter v. Bejoy Krishna Das (1903) 7 C.W.N., 744 and Purna Chandra Mandal v. Radha Nath Dass I.L.R., (1906) Cal., 867.

5. The application as it stands cannot be therefore granted. But we think that this is a fit case for allowing the decree-holder to amend the prayer of his petition by adding an alternative prayer that 'if the Court thinks that the decree as it stands awards relief personally against the defendant, the Court will be pleased to order arrest of the defendant and attach the following properties' (to be definitely described). We think that Section 153 of the Civil Procedure Code gives ample power to the Court to allow such amendment, and that this is a fit case to permit such an amendment. Four weeks from receipt of records by the Munsif is granted to make the amendment. The Lower Court's orders are set aside. If the amendment is made, the Court of First Instance will pass orders in due course of law on the alternative relief and on the costs of the petition in that Court. If the amendment is not made, the petition will stand dismissed with the costs of the Court of First Instance. The parties will bear their respective costs in this Court and in the District Court.


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