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Ramalinga Rowthan Vs. Sheik Ibrahim Sahib - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported in59Ind.Cas.161
AppellantRamalinga Rowthan
RespondentSheik Ibrahim Sahib
Cases ReferredVide Vyapuri Goundan v. Chidambara Mudaliar
Excerpt:
res judicata - execution of decree--mortgage-decree--final decree, absence of--decree-holder directed to obtain final decree--subsequent application for execution without final decree, whether barred. - - that decision is clearly binding on him:.....that no final order has yet been obtained as directed in the order of march 1917; consequently, the present application, for execution is incompetent. it may be open to him, if he is so advised, to apply to the lower court to amend his present application so as to make it one for an order absolute or to present a fresh application for a decree absolute before applying for execution. we think the application, in its present form, is not maintainable. we reverse the order of the lower courts and remand the application to the 1st court for disposal in the light of the above observations.2. respondent must pay the costs of the appellant in this court as he failed to carry out the direction of the court made in march 1917.
Judgment:

1. This decree was passed in November 1908; the time fixed for payment would expire in or about May 1909. It is contended that the new Code of Civil Procedure, which name into force in January 1909, is applicable to this ease. Upon that point there is a conflict of opinion in this Court: Vide Ramasami Reddi v. Sokkappa Reddi 48 Ind. Cas. 782 and Nimmala Mahankali v. Kallakuri Subba Rao 41 Ind. Cas. 268 . But it is not necessary to decide this question, as, in our opinion, the decree-holder is bound by the order passed on the 13th March 1917 on his application for execution. That decision is clearly binding on him: Vide Vyapuri Goundan v. Chidambara Mudaliar 18 Ind. Cas. 607. He might have appealed against it, but as he Submitted to the adjudication, it is not open to him to ignore it. It is admitted that no final order has yet been obtained as directed in the order of March 1917; consequently, the present application, for execution is incompetent. It may be open to him, if he is so advised, to apply to the lower Court to amend his present application so as to make it one for an order absolute or to present a fresh application for a decree absolute before applying for execution. We think the application, in its present form, is not maintainable. We reverse the order of the lower Courts and remand the application to the 1st Court for disposal in the light of the above observations.

2. Respondent must pay the costs of the appellant in this Court as he failed to carry out the direction of the Court made in March 1917.


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