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Cheria Kunhi Shridevi Amma Tirumumpu and ors. Vs. Valia Narayan Tirumumpu - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported inAIR1929Mad20; 114Ind.Cas.839
AppellantCheria Kunhi Shridevi Amma Tirumumpu and ors.
RespondentValia Narayan Tirumumpu
Cases ReferredVishnu Embadri v. Tazakat Manayul
Excerpt:
- .....devadoss, j., in vishnu umbadri v. tazakat manayul [1928] m.w.n. 390 where we held that a second appeal lies and order 40, rule 1, civil p.c. has nothing to do with an application for execution. mr. kutti krishna menon for the respondent brought to our notice the decision in srinivasa prosad singh v. kesho prasad singh [1911] 14 c.l.j. 489 where it was remarked that section 51 and order 21, rule 11 must be read with order 40, rule 1. this is no doubt an obiter dictum, but it is cited without any disapproval by woodroffe on receivers (edn. 3, p. 161). above all, my brother pointed out in the course of argument, that whereas rules 12 to 57, order 21, civil p.c. contain modes of carrying out the processes of execution, in order 21, rule 11 (j) (i) (ii) (iii) (v) there is no rule dealing.....
Judgment:

Ramesam, J.

1. A preliminary objection is taken by the respondent that no second appeal lies. The appellant's vakil refers us to the decision of myself and Devadoss, J., in Vishnu Umbadri v. Tazakat Manayul [1928] M.W.N. 390 where we held that a second appeal lies and Order 40, Rule 1, Civil P.C. has nothing to do with an application for execution. Mr. Kutti Krishna Menon for the respondent brought to our notice the decision in Srinivasa Prosad Singh v. Kesho Prasad Singh [1911] 14 C.L.J. 489 where it was remarked that Section 51 and Order 21, Rule 11 must be read with Order 40, Rule 1. This is no doubt an obiter dictum, but it is cited without any disapproval by Woodroffe on Receivers (Edn. 3, p. 161). Above all, my brother pointed out in the course of argument, that whereas Rules 12 to 57, Order 21, Civil P.C. contain modes of carrying out the processes of execution, in Order 21, Rule 11 (j) (i) (ii) (iii) (v) there is no rule dealing with the mode of appointing a receiver which is the only process in Clause (iv). The obvious inference is that it was intended to be dealt with by Order 40, Rule 1. The other rules in Order 40 must obviously apply.

2. There is no inconvenience, hardship or anomaly in holding that no second appeal lies. Except in a case where the decree itself directs that the relief should be. worked out by the appointment of a receiver in which case, if an appellate Court refuses to appoint receiver, it can be set right in revision, no decree-holder has a right to ask for the appointment of a receiver only. It would always be an alternative mode to the relief mentioned in Clause (ii) or (j), that is, attachment and. sale. In the present case, the appellant can attach rents and profits or a small part of the tarwad property. Thus there is no hardship in holding that no second appeal lies.

3. The result is I depart from my view as expressed in Vishnu Embadri v. Tazakat Manayul [1928] M.W.N. 390 where the considerations pointed out have not been adverted to and hold that no second appeal lies. The second appeals are dismissed with costs.

Jackson, J.

4. I agree.


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