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R. Fisher Vs. A.M. Arunachallam Chettiar and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Judge
Reported in2Ind.Cas.522
AppellantR. Fisher
RespondentA.M. Arunachallam Chettiar and anr.
Cases ReferredNaidu v. Somasundaram Chettiar
Excerpt:
civil procedure code (act xiv of 1882), section 278 - claim by mortgagee dismissal of claim on ground that mortgage was discharged--subsequent suit for declaration that mortgage was subsisting--valuation. - - the mortgagor is a party both to the suit and the claim proceedings though she probably contests neither and the effect of granting the declaration asked for by the plaintiff will be to establish the mortgage as against her as well as against the attaching creditor......is wrong and that his mortgage is subsisting. the mortgagor is a party both to the suit and the claim proceedings though she probably contests neither and the effect of granting the declaration asked for by the plaintiff will be to establish the mortgage as against her as well as against the attaching creditor.3. the case is distinguishable from krishna sami naidu v. somasundaram chettiar 30 m.k 335 in which the claimant sought to get rid of the order of attachment on property which he claimed to be his own.4. we think that in the circumstances of this case the plaintiff has rightly valued the subject-matter of the suit for purpose of jurisdiction and we set aside the order of the subordinate judge and direct him to restore the suit to his file and dispose of it according to law.5......
Judgment:

1. The order on the claim proceedings which the plaintiff now seeks to set aside declared according to the plaint in the suit, that the plaintiff's mortgage has been discharged.

2. The plaintiff does not in his suit seek to have the property released of the attachment, but to have it declared that this order is wrong and that his mortgage is subsisting. The mortgagor is a party both to the suit and the claim proceedings though she probably contests neither and the effect of granting the declaration asked for by the plaintiff will be to establish the mortgage as against her as well as against the attaching creditor.

3. The case is distinguishable from Krishna sami Naidu v. Somasundaram Chettiar 30 M.k 335 in which the claimant sought to get rid of the order of attachment on property which he claimed to be his own.

4. We think that in the circumstances of this case the plaintiff has rightly valued the subject-matter of the suit for purpose of jurisdiction and we set aside the order of the Subordinate Judge and direct him to restore the suit to his file and dispose of it according to law.

5. Cost will abide the event.


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