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Mullaseri Gopala Menon Vs. Krisheki Kovilaknath Manavikraman Alias Anujan Raja Avergal - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported in13Ind.Cas.179
AppellantMullaseri Gopala Menon
RespondentKrisheki Kovilaknath Manavikraman Alias Anujan Raja Avergal
Cases ReferredThuchakovil Unni Koya v. Aropayil Pathuti Ummu
Excerpt:
civil procedure code (act xiv of 1882), section 275 - execution of decree--application to execute decree already under attachment, whether an application in accordance with law--limitation--decree by first court reversed on appeal--restitution, whether enforceable in execution--civil procedure code (act v of 1908), section 144. - .....of the appellate court, however, was passed the appellant had executed the original decree against seshan pattar. then it appears the assignor of the respondent in this appeal instituted a suit in 1906 in the district munsif's court at alatur and attached before judgment the right of seshan pattar to the restitution of the property recovered from him by the appellant under the decree of the lower appellate court dated 3rd september 1904. the application for execution which the district munsif found would save limitation, was made by seshan pattar's sons on the 30th august 1907. at the time of the application the decree had been attached, as already stated, and the question is whether the application which was dismissed on the ground that the decree was under attachment and could not,.....
Judgment:

1. The first question argued before us relates to limitation and arises upon the facts. One Seshan Pattar was sued in the District Munsif's Court at Alatur in 1904 by the present appellant, and the latter recovered a decree for payment of money, but the decree was reversed by the Subordinate Judge's Court of Palghat on the 3rd September 1904. Before the judgment of the Appellate Court, however, was passed the appellant had executed the original decree against Seshan Pattar. Then it appears the assignor of the respondent in this appeal instituted a suit in 1906 in the District Munsif's Court at Alatur and attached before judgment the right of Seshan Pattar to the restitution of the property recovered from him by the appellant under the decree of the lower Appellate Court dated 3rd September 1904. The application for execution which the District Munsif found would save limitation, was made by Seshan Pattar's sons on the 30th August 1907. At the time of the application the decree had been attached, as already stated, and the question is whether the application which was dismissed on the ground that the decree was under attachment and could not, therefore, be executed can be regarded as an application according to law as a step-in-aid of execution. The earned Counsel for the appellant has strongly relied in support of his contention that the application was not in accordance with law on the case of Thuchakovil Unni Koya v. Aropayil Pathuti Ummu (1911) 1 M.W.N. 187 : 9 Ind. Cas. 786 : 9 M.L.T. 312 : 21 M.L.J. 077. But that was a case in which the attachment was under the second paragraph of Section 273 of the Code of 1882. But the provisions of this paragiaph cannot be applied to the present case, for it is the same Court, that is, the District Munsif's Court of Alatur which passed the decree sought to be executed and which has to execute the decree of the Subordinate Judge's Court of Palghat which is under attachment. This case would rather seem to be covered by the first part of the penultimate paragraph of Section 273, which does not direct stay of the execution of the attached decree. Even if that provision does not apply, the only effect of the attachment would be to parent alienation. Nor is there any thing in the terms of the order passed on the application for attachment which forbids the decree-holder from proceeding with the execution. We, therefore, hold that the application of the 30th August 1907 was in accordance with law.

2. The second point argued by Dr. Swaminathan is that a right of restitution arising out of a reversing decree cannot be enforced in execution. But Section 14 of the present Civil Procedure Code, which governs the question, makes it quite clear not only that such a right can be enforced in execution; but that no suit shall lie for the purpose.

3. The result is that the appeal is dismissed with costs.


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