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Alagamuthu Pillai Vs. Devasagaya Fernandez - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Judge
Reported in32Ind.Cas.484
AppellantAlagamuthu Pillai
RespondentDevasagaya Fernandez
Cases Referred and Vala Subramania Pillai v. Sankara Subbu Naidu
Excerpt:
provincial small cause courts act (ix of 1887), sections 25 and 27 - order in execution passed by small cause court, whether appealable--revision--batta memorandum, whether a step-in-aid of execution. - - in the present case the order in execution was passed by the small cause court on its small cause side and section 27 of the provincial small cause courts act clearly barred an appeal against such an order and hence a revision petition lay under section 25 to this court......decided that an appeal lies against an order passed on an application under section 310a of the civil procedure code to set aside an auction sale of immoveable property in execution. the case inaccurately reports 1 as veeramathari v. subramania iyer 12 ind. cas. 959 was a case where in execution of a small cause decree (transferred to the original side for execution), immoveable property was sold and an application was made under section 310a of the civil procedure code to set it aside. the learned judges held that an appeal lay against an order passed on such an application but that a second appeal did not lie. that case has, therefore, no application. in the present case the order in execution was passed by the small cause court on its small cause side and section 27 of the.....
Judgment:

1. The learned Judge has relied on the decision found in the unauthorised report in Veeramathari v. Subrdmania Iyer 12 Ind. Cas. 959 in support of his view that an appeal lay to the District Court against the order of the Small Cause Court in execution and that hence no revision petition lay to this Court. That case is reported as a decision given in Appeal against Order No. 5 of 1911, but that reference is a clear mistake for Civil Miscellaneous Second Appeal No. 5 of 1911. That decision follows an earlier decision in Lakshminarasimhacharyulu v. Lakshmamma a 12 Ind Cas 169. This earlier case decided that an appeal lies against an order passed on an application under Section 310A of the Civil Procedure Code to set aside an auction sale of immoveable property in execution. The case inaccurately reports 1 as Veeramathari v. Subramania Iyer 12 Ind. Cas. 959 was a case where in execution of a Small Cause decree (transferred to the original side for execution), immoveable property was sold and an application was made under Section 310A of the Civil Procedure Code to set it aside. The learned Judges held that an appeal lay against an order passed on such an application but that a second appeal did not lie. That case has, therefore, no application. In the present case the order in execution was passed by the Small Cause Court on its Small Cause side and Section 27 of the Provincial Small Cause Courts Act clearly barred an appeal against such an order and hence a revision petition lay under Section 25 to this Court.

2. On the merits we shall follow Vijiaraghavalu Naidu v. Srinivasalu Naidu 28 M.k 399 and Vala Subramania Pillai v. Sankara Subbu Naidu 7 Ind. Cas. 859. Holding, therefore, that the batta memorandum, which mentions that it is paid for notice to issue to the judgment-debtor under Section 248 of the Civil Procedure Code, is an application to take a step-in-aid of execution, we decide that the execution application is not barred by limitation and we grant the prayer of the execution application, reversing the order of the Subordinate Judge with costs payable by the respondent to petitioner throughout.


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