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Govindasami Naicker Vs. Perumal Raja and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai
Decided On
Reported inAIR1927Mad327
AppellantGovindasami Naicker
RespondentPerumal Raja and anr.
Cases ReferredDulhin Mathura Koer v. Bangsidhari Singh
Excerpt:
- - but until that is done its plain reading cannot be set aside on assumptions, however well founded, of what the legislature intended......there it is argued with considerable acumen that the legislature intended to restrict ownership in rule 89 to ownership recently acquired. this may be so but, with all respect, i consider the governing factor to be not what the legislature intended, but what the legislature has enacted. the whole object of embodying the law of a country in an elaborate system of codes, is that every subject should have a ready means of knowing the law under which he is governed.4. it will be intolerable if a person following the plain language of the code has taken certain action and involved himself in certain litigation only to find that the law of the country is not in the code, is not even in the authorized reports, but buried away in a private journal in a distant province to which only those in the.....
Judgment:

Jackson, J.

1. Petition to revise the order of the District Judge of West Tanjore in A. S. No. 184 of 1923. Petitioner purchased a house in Court-auction. The 1st counter-petitioner-claiming to be owner, made the deposit under Order 21 of Rule 89, Civil P. C., the cancellation of the sale has been ordered and hence this petition.

2. It is first contended that the 1st counter-petitioner is barred by res judicata because he withdrew a claim after the 2nd counter-petitioner took certain oaths. There is no absolute rule of res judicata applying to execution proceedings, and it cannot be held that a man is debarred from defending his action under Rule 89 because he desisted from his action under Rule 58 of Order 21. The petitioner's second point is that the words 'owning such property by virtue of a title acquired before such sale,' cannot apply to an owner whose title is longstanding and not recently derived from the judgmentdebtor. Of course, the language of the section conveys no such limitation but petitioner relies upon a ruling reported in a Calcutta journal, Dulhin Mathura Koer v. Bangsidhari Singh [1912] 15 C. L. J. 83.

3. There it is argued with considerable acumen that the Legislature intended to restrict ownership in Rule 89 to ownership recently acquired. This may be so but, with all respect, I consider the governing factor to be not what the Legislature intended, but what the Legislature has enacted. The whole object of embodying the law of a country in an elaborate system of Codes, is that every subject should have a ready means of knowing the law under which he is governed.

4. It will be intolerable if a person following the plain language of the Code has taken certain action and involved himself in certain litigation only to find that the law of the country is not in the Code, is not even in the authorized reports, but buried away in a private journal in a distant province to which only those in the neighbourhood of an extensive law library can have access. If the Code, is defective, it should be amended or this Court should frame the necessary rules; but until that is done its plain reading cannot be set aside on assumptions, however well founded, of what the Legislature intended. I may add that as it stands the rule is quite innocuous. The Courts are always concerned to see that a judgment-debtor suffers as little as possible through enforced sales and every endeavour is made to secure a fair price. Presumably the price must be very low to induce an owner who does not derive his title from the judgmentdebtor to come forward, and deposit the sale amount and on the rare occasions when he does so it is impossible to say that any injustice has been caused.

5. The petition is dismissed with costs.


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