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Pichu Aiyar and anr. and Ramakrishna Iyer and ors. Vs. A.L.R.M.N. Palaniappa Chettiar - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Judge
Reported in6Ind.Cas.291
AppellantPichu Aiyar and anr. and Ramakrishna Iyer and ors.
RespondentA.L.R.M.N. Palaniappa Chettiar
Cases Referred and Krishna Pal v. Muhammad Safdar Alikhan
Excerpt:
civil procedure code (act xiv of 1882), sections 295, 315 - rateable distribution, suit to recover amount of--limitation. - - we also find that the suit is not barred by limitation, for it is brought within three years of the judgment exhibit a, by which it was found that consideration had failed. we must, therefore, ask the subordinate judge to find clearly on the evidence on record whether the plaintiff had constructive notice of the mortgage......remains the question of notice. the subordinate judge finds that the plaintiff had no direct notice. it is contended, however, that the plaintiff had constructive notice because his agent was aware of the mortgage. the subordinate judge does not find whether the plaintiff had constructive notice through his agent, but argues that even if the agent had notice, the effect of the notice is done away by the fact that the judgment-debtor had arranged to discharge the mortgage. we must, therefore, ask the subordinate judge to find clearly on the evidence on record whether the plaintiff had constructive notice of the mortgage.2. the finding should be submitted within four weeks and seven days will be allowed for filing objections.
Judgment:

1. That Narayana Iyer had no saleable interest at the time of the Court sale to the plaintiff is, we think, clear, for Narayana Iyer could not compel his vendees to pay him anything, they being entitled to apply the purchase-money to the discharge of the outstanding mortgage. We also find that the suit is not barred by limitation, for it is brought within three years of the judgment Exhibit A, by which it was found that consideration had failed. As to the question whether the plaintiff can recover money which has, been rateably distributed under Section 295, Civil Procedure Code, the words of Section 315, Civil Procedure Code, are wide enough to entitle him to do so and Krishna Pal v. Muhammad Safdar Alikhan 13 A. 383 supports this view. There remains the question of notice. The Subordinate Judge finds that the plaintiff had no direct notice. It is contended, however, that the plaintiff had constructive notice because his agent was aware of the mortgage. The Subordinate Judge does not find whether the plaintiff had constructive notice through his agent, but argues that even if the agent had notice, the effect of the notice is done away by the fact that the judgment-debtor had arranged to discharge the mortgage. We must, therefore, ask the Subordinate Judge to find clearly on the evidence on record whether the plaintiff had constructive notice of the mortgage.

2. The finding should be submitted within four weeks and seven days will be allowed for filing objections.


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