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Arumugam Pillay Vs. Krishnasawami Naidu and ors. - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported in56Ind.Cas.976
AppellantArumugam Pillay
RespondentKrishnasawami Naidu and ors.
Cases ReferredChidambaram Chettiar v. Krishna Vathiyar
Excerpt:
civil procedure code (act v of 1908), order xxiii, rule 3 - arrangement between parties before decree to treat decree as in part inexecutable, enforceability of. - - bat on the assumption, which at present rests on mere assertion, that the purchaser was a party to that fraud, there is still the fast that the absence of notice to appellant or the debtor was never distinctly alleged or, so far as appears, relied on in the lower courts or in the grounds of appeal here. i do not think this suggestion is well founded......been wrongly refused to the arrangement made before decree, i observe that chidambaram chettiar v. krishna vathiyar 37 ind. cas. 836 : 32 m.l.j. 13 dealt with an arrangement to postpone execution, not with one, such as is pleaded here, for the decree being treated as in part inexecutable. an arrangement of the latter description has received effect in this court, as far as appears from authorised reports, only in one case, rama ayyan v. sreenivasa pattar 19 m. 230 , the decision of a single judge; and i do not think that the decision in chidambaram chettiar v. krishna vathiyar 37 ind. cas. 836 obliges us to extend the principle to the extent required by appellant's contention.2. the other objection to the sale is that it was obtained and carried through by a person having no authority.....
Judgment:

Oldfield, J.

1. On the question whether, effect has been wrongly refused to the arrangement made before decree, I observe that Chidambaram Chettiar v. Krishna Vathiyar 37 Ind. Cas. 836 : 32 M.L.J. 13 dealt with an arrangement to postpone execution, not with one, such as is pleaded here, for the decree being treated as in part inexecutable. An arrangement of the latter description has received effect in this Court, as far as appears from authorised reports, only in one case, Rama Ayyan v. Sreenivasa Pattar 19 M. 230 , the decision of a single Judge; and I do not think that the decision in Chidambaram Chettiar v. Krishna Vathiyar 37 Ind. Cas. 836 obliges us to extend the principle to the extent required by appellant's contention.

2. The other objection to the sale is that it was obtained and carried through by a person having no authority from the decree holder in the matter. The objection is pressed here in the shape of a contention that the whole proceedings from and in-eluding the final decree were taken without notice going to appellant or the judgment-debtor and that they, therefore, were vitiated by fraud and cannot be sustained. Bat on the assumption, which at present rests on mere assertion, that the purchaser was a party to that fraud, there is still the fast that the absence of notice to appellant or the debtor was never distinctly alleged or, so far as appears, relied on in the lower Courts or in the grounds of appeal here. In fact, so far as we are able to test this case, by reference to the final decree, we observe that the mention in it of the judgment-debtor as absent is ground for a presumption that he had had notice and disregarded it, and then his remedy was by proceedings to have that decree set aside. This objection also to the lower Appellate Court's decision is, therefore, untenable,

3. The appeal against appellate order is dismissed with costs. The civil revision petition is dismissed; no order as to costs.

Sheshagiri Aiyar, J.

4. I agree in the main with the observations of my learned brother in the judgment just now delivered. In Chidambaram Chettiar v. Krishna Vathiyar 37 Ind. Cas. 836 I rested my conclusion on the theory of stare decisis. It is argued before us by Mr. Jayarama Aiyar that it follows from my judgment in that case that all the cases referred to therein as supporting the theory of stare decide must be taken to have been accepted by me as correct. I do not think this suggestion is well founded. The course of decisions was referred to for the general proposition that procedure arrangements are within the language of Section 47. I did not intend to accept as correct every one of the decisions I quoted for that purpose. On the other hand I want to make it clear that the decision in Chidambaram Chettiar v. Krishna Vathiyar 37 Ind. Cas. 836 should not, in my opinion, be applied to what are termed cognate oases. Further I am clear that an attack against the decree as having been obtained by fraud by one of the parties thereto is not within the principle of Chidambaram Chettiar v. Krishna Vathiyar 37 Ind. Cas. 836 .

5. I agree, therefore, with my learned brother that this appeal should be dismissed with costs.


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