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Gopala Konar Vs. Subramania Asari and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai High Court
Decided On
Reported in(1969)1MLJ326
AppellantGopala Konar
RespondentSubramania Asari and anr.
Cases ReferredAbdul Sac v. Sundara Mudaliar
Excerpt:
- - thangamuthu koriar defended his purchase but was unsuccessful......property as his own. his petition itself purported to be under order 21, rule 58 and section 47, civil procedure code. his claim was allowed by the learned district munsif by his order dated 12th november, 1963. against that gopala konar filed an appeal to the district court, but the district court held that no appeal lay and that the remedy of gopala konar was only a suit under order 21, rule 63, civil procedure code. gopala konar urged that the matter was one under section 47, civil procedure code, and therefore an appeal lay. but that contention was rejected by the learned district judge. this second appeal has been preferred against the order of the learned district judge.3. the law on this point has been laid down in the full bench decision in abdul sac v. sundara mudaliar :.....
Judgment:
ORDER

K.S. Venkataraman, J.

1. The question involved is, whether an appeal lay to the District Court of Tiruchirapalli against the order of the District Munsif of Ariyalur dated 12th November, 1963 in E.A. No. 81 of 1963 in O.S. No. 61 of 1960. The facts are these One Thangamuthu Konar purchased a house for Rs. 500 from one Ponnuswami, Asari and his wife Pappammal on 21st July, 1953. Subramania Asari, son of Ponnuswami Asari, however; claimed the property to be his and sold it to one Paramasiva Udayar. Paraniasiva Udayar removed the superstructure of the house. Thangamuthu Koriar defended his purchase but was unsuccessful. Thereupon, he filed O.S. No. 61 of 1960 for damages for breach of covenant of title contained in the sale deed dated 21st July, 1953. He impleaded Pappammal as the first defendant in that suit, as she was one of the vendors, Ponnuswami Asari was by then dead. Thangamuthu Konar therefore impleaded Subramania Asari (as 2nd respondent) as the legal representative of Ponnuswami Asari, liable to satisfy his claim out of the assets of Ponnuswami Asari, if any, in his hands. Subsequently, however, Subramania Asari was exonerated but his name was hot struck off the record. A decree was passed on 21st October, 1960, for Rs. 584-69, the first defendant allowing the suit to proceed ex parte.

2. Thangamuthu Konar assigned the decree to one Gopal Konar, who levied execution and attached some house belonging to Pappammal. Subramania Asari intervened with a claim petition, E.A. No. 81 of 1963, claiming the property as his own. His petition itself purported to be under Order 21, Rule 58 and Section 47, Civil Procedure Code. His claim was allowed by the learned District Munsif by his order dated 12th November, 1963. Against that Gopala Konar filed an appeal to the District Court, but the District Court held that no appeal lay and that the remedy of Gopala Konar was only a suit under Order 21, Rule 63, Civil Procedure Code. Gopala Konar urged that the matter was one under Section 47, Civil Procedure Code, and therefore an appeal lay. But that contention was rejected by the learned District Judge. This second appeal has been preferred against the order of the learned District Judge.

3. The law on this point has been laid down in the Full Bench decision in Abdul Sac v. Sundara Mudaliar : AIR1930Mad817 . It is pointed out there that if a party's name is struck off the record, he no longer remains a party and Section 47, Civil Procedure Code, will not apply, but if his name is not struck off and he is only exonerated from the suit, the question whether he continues to be a party for the purpose of Section 47, Civil Procedure Code, would depend on the circumstances in which he was impleaded in the suit. Suppose, for instance, he ought not to have been made a party to the suit at all, but still had been impleaded and was subsequently exonerated, the duty of the Court was to strike off his name from the record, and if, instead of adopting the correct procedure, the Court merely exonerated him, it would not matter and his name must be deemed to have been struck off the record. In contrast to this will be a case where a claim was made against a party on some basis, but the plaintiff abandoned his claim as against that party and the party was exonerated. In such a case the party would still remain a defendant in the suit for the purpose of Section 47, Civil Procedure Code. This is also made clear in the Explanation to Section 47, Civil Procedure Code, which says:

For the purposes of this section, a plaintiff whose suit has been dismissed, a defendant against whom a suit has been dismissed and a purchaser at a sale in execution of the decree are parties to the suit.

The question, therefore, is why Subramania Asari was impleaded at all in the suit and why he was exonerated. I have gone through the plaint in O.S. No. 61 of 1960 a certified copy of which has been furnished by learned Counsel for the appellant. Paragraphs 10, 11, 12 and 17 of the plaint show that Subramania Asari was impleaded on the footing that he was the legal representative of Ponnuswami Asari and had the assets of Ponnuswami Asari in his hands and was therefore liable to satisfy the claim of Thangamuthu Konar against the assets of Ponnuswami Asari. This is a case, therefore, where it cannot be said that he ought not to have been made : a party to the suit at all. Sri K.S. Naidu, learned Counsel for Subramania Asari,, urges before me that the contention of Subramania Asari is that long before 21st July, 1953, there had been a partition between Ponnuswami Asari and Subramania Asari and therefore Subramania Asari had nothing to do with the claim of Thangamuthu Konar. But the partition could not put an end to his status as the heir and legal representative of his father Ponnuswami Asari on the latter's death, and it was on that footing he was impleaded in the suit. Merely because the plaintiff abandoned his claim against him, he would not cease to be a party to the suit. Hence, it is clear that Section 47, Civil Procedure Code, applies and, as we have seen, even Subramania Asari quoted Section 47 in his application and if Section 47 applies, the decision of the learned District Munsif is a ' decree 'under the definition in Section 2 (2), Civil Procedure Code, and will be appealable as such under Section 96, Civil Procedure Code. The learned District Judge was therefore wrong in refusing to entertain the appeal. His order is set aside and he is directed to admit the appeal' and dispose of it according to law. No order as to costs.


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