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Parameswara Menon Vs. Kotana Narayana Menon - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai
Decided On
Reported in(1941)2MLJ580
AppellantParameswara Menon
RespondentKotana Narayana Menon
Cases ReferredViswanatha Aiyar v. Narayanaswami Aiyar
Excerpt:
- .....the cochin state, who executed his decree by the sale of properties in british india. the judgment-debtor applied under section 23 of madras act iv of 1938 to set aside that sale and the lower appellate court has ordered it to be set aside. it seems to me that the order is wrong. section 23 is available only to an agriculturist entitled to the benefits of the act. this must mean that he is entitled to the benefits of the act with reference to the particular matter and not generally. the judgment-debtor in question having got this sale set aside cannot apply for any benefit under the act unless he can get the decree amended under section 19. that cannot be done as the procedure under section 19 can only be applied by the court which passed the decree, that is, in this case by the foreign.....
Judgment:

Wadsworth, J.

1. The petitioner was a decree-holder in a Court of the Cochin State, who executed his decree by the sale of properties in British India. The judgment-debtor applied under Section 23 of Madras Act IV of 1938 to set aside that sale and the lower appellate Court has ordered it to be set aside. It seems to me that the order is wrong. Section 23 is available only to an agriculturist entitled to the benefits of the Act. This must mean that he is entitled to the benefits of the Act with reference to the particular matter and not generally. The judgment-debtor in question having got this sale set aside cannot apply for any benefit under the Act unless he can get the decree amended under Section 19. That cannot be done as the procedure under Section 19 can only be applied by the Court which passed the decree, that is, in this case by the foreign Court to which this Act has no application. It seems to me to follow that the judgment-debtor is not an agriculturist entitled to the benefits of the Act. I may point out that to hold otherwise would still leave it open to the decree-holder to execute his decree again and cause a fresh sale to be held, to which sale Section 23 would have no application. A further objection which was not taken in the lower appellate Court is that no appeal lay--vide Viswanatha Aiyar v. Narayanaswami Aiyar : (1939)2MLJ398 . But in the view that I have taken on the merits, it is unnecessary to go into that objection.

2. The petition is allowed with costs throughout and the application under Section 23 of Act IV of 1938 is dismissed.


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