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Ramanathan Chetty Vs. Alagappa Chetty and ors. - Court Judgment

LegalCrystal Citation
Decided On
Reported inAIR1930Mad528; 131Ind.Cas.160; (1930)59MLJ102
AppellantRamanathan Chetty
RespondentAlagappa Chetty and ors.
Cases ReferredSrinivasa Mudali v. Ramaswami Mudali
.....v of 1908), section 2--'decree' meaning of--court, power of, to pass more than one preliminary or final decree--limitation act (ix of 1908), schedule i, article 181--application in pending suit to pass final decree, whether governed by any rule of limitation--jurisdiction--transfer of local jurisdiction, effect of, on pending suit. - - 1 do take the good outstandings due to the firm as found in the commissioner's report and that he do account to the other partners for the same. 1 has always been the managing partner and as he has been instituting suits for recovery of all outstandings, etc, the good outstandings due to the firm as found in the commissioner's report will be taken by him and he will account to the partners for the same. 3. it appears from the commissioner's report that..........presented his report on 14th january, 1915, and the temporary subordinate judge passed a final decree on 22nd march, 1915. it is with the legal aspect of a passage in this decree that we are now concerned. the decree contains certain provisions such as normally and place in a final decree for the dissolution of partnership and then occurs the following passage: 'this court doth further direct that defendant no. 1 do take the good outstandings due to the firm as found in the commissioner's report and that he do account to the other partners for the same.'2. this is based upon a passage in the judgment which says :as defendant no. 1 has always been the managing partner and as he has been instituting suits for recovery of all outstandings, etc, the good outstandings due to the.....

Curgenven, J.

1. This revision petition is presented against the order of the Principal Subordinate Judge of Devakotta in the following circumstances. The suit out of which it arises was instituted for dissolution of partnership and for accounts in the Court of the Subordinate Judge of Ramnad. It was transferred to the then existing Temporary Subordinate Judge of Ramnad and he passed a preliminary decree on 23rd October, 1913, dissolving the partnership from the date of the plaint and appointing a Commissioner to examine and report upon the accounts. The Commissioner presented his report on 14th January, 1915, and the Temporary Subordinate Judge passed a final decree on 22nd March, 1915. It is with the legal aspect of a passage in this decree that we are now concerned. The decree contains certain provisions such as normally and place in a final decree for the dissolution of partnership and then occurs the following passage: 'This Court doth further direct that defendant No. 1 do take the good outstandings due to the firm as found in the Commissioner's report and that he do account to the other partners for the same.'

2. This is based upon a passage in the judgment which says :

As defendant No. 1 has always been the managing partner and as he has been instituting suits for recovery of all outstandings, etc, the good outstandings due to the firm as found in the Commissioner's report will be taken by him and he will account to the partners for the same.

3. It appears from the Commissioner's report that the parties failed to assist in the realization of the assets and the settlement of their accounts and accordingly he had to propose to the Court the appointment of a Receiver for this purpose, and the Court decided to take the course above-mentioned. Defendant No. 1 appealed against this decree to the High Court but died before the appeal was disposed of. Nevertheless, the above quoted pasage was reproduced in the appellate decree. So far as we are concerned, it is agreed that we may disregard the appellate decree in this respect and may base ourselves upon the terms of the decree dated 22nd March, 1915. No attempt was made by any of the parties to enforce the direction given to defendant No. 1 until 14th October, 1925, when defendant No. 6, son of one of the partners, applied to the Additional Subordinate Judge' of Ramnad at Madura to pass a final decree in pursuance of that direction. About a year later the application was returned by the Additional Subordinate Judge on the ground that he had no jurisdiction and it was represented to the Temporary Sub-ordinate Judge of Devakotta.

4. I will deal first with an objection, which, however, has not been strongly pressed, that the lower Court had no jurisdiction to deal with the suit. I have said that it was originally disposed of by the Temporary Subordinate Judge of Ramnad. That Court was abolished on 1st January, 1926, two Subordinate Judges being attached to the Sub-Court of Ramnad at Madura from that date. The application now in question had been filed before the change took place and assuming that the suit to which it related was a pending suit, it should have been transferred to the Ramnad or to the Davakotta Court, since in the case of a pending suit a transfer of territorial jurisdiction will not per se result in a transfer of the suit: Subramania Iyer v. Swaminatha Chettiar : AIR1928Mad746 and Chokkalinga Pillai v. Velayuda Mudaliar 87 Ind. Cas. 152 : A.I.R. 1925 Mad. 117 : 47 M.L.J. 448, I infer that what took place was that all suits at the time pending before the Temporary Subordinate Judge of Ramnad were distributed between Ramnad and Devakotta but that inasmuch as the present suit had to all appearances been disposed of, no such order was made with regard to it. Section 37, Civil Procedure Code, would have sufficiently provided for any subsequent proceedings if the suit had already been disposed of but if, as I propose to hold, the suit was still pending, a transfer order was technically necessary. Since, however, it has now bean dealt with by the Court which has jurisdiction over the place where the cause of action arose, and to whose file it would certainly have been transferred if any transfer had been ordered, I think that the irregularity is no more than technical and does not form a fit subject for revision.

5. In the order under consideration the learned Subordinate Judge has given reasons for holding that the direction in the final decree is of an interlocutory character, that by force of it the suit is still pending, and that the application which is in its nature an application to pass a final decree is not subject to the Law of Limitation. He has, therefore, decided to take the suit on his file and proceed with it. This order has been attacked on two alternative grounds:

6. (1) the direction given to defendant No. 1 is not in the nature of a preliminary decree, but if it is,

7. (2) the application is barred under Article 181, Schedule II Limitation Act, as having been made more than three years from the date of the decree.

8. It was in point of fact made about 101/2 years after the trial Court's decree and six years after the High Court's decree.

9. It is contended in the first place that the Code contemplates only one preliminary decree and one final decree, whereas what we must refer to here as the final decree is in fact a composite decree, part final and part preliminary; so that the preliminary portion would require a further final decree to be passed. This position cannot, I think, be substantiated either by the terms of the Code or by any case-law. The definition of 'decree' in Section 2 (2) concludes with an explanation which says that a decree may be partly preliminary and partly final; and I can find nothing in the Code repugnant to the notion that more than one preliminary or more than one final decree may be passed. There are some observations of Krishnan, J., in Gulasam Bivi v. Ahamadsa Rowther 51 Ind. Cas. 140 : 42 M. 396 : 9 L.W. 541 : (1919) M.W.N. 284 which deals with the partition suit, to the effect that the Code does not contemplate more than one preliminary decree and one final decree in one suit, and that to Lava two final decrees and to call the first one a final decree would ba a misnomer. I do not think he intended to say that, where circumstances so require, the Court has no jurisdiction to pass a composite decree. A situation rather similar to the present forms the subject of some observations by Mukerjee, J., at page 260, Peary Mohan v. Manohar Mukerji : AIR1924Cal160 , He says: 'It may be conceded that the Legislature contemplated that ordinarily there should be one preliminary decree and one final decree in a suit; the preliminary decree ascertains what is to be done while the final decree states the result achieved by means of the preliminary decree. But as observed by Piggott, J., in Yakub Hussain v. Barat Indu 18 Ind. Cas. 701 : 35 A. 159 : 11 A.L.J. 120, there may be exceptions and the case before us furnishes an instance. Here the original suit was for the removal of the shebait, for cancellation of the judicial sale and for recovery of the trust property. The decree made in the suit has directed the removal of the shebait and the cancellation of the sale subject to the investigation of accounts to be rendered by the shebait in a supplementary proceeding. The order which has now been made is in essence a preliminary decree in the supplementary proceeding and will lead up to the final decree to be made therein.'

10. There is another Calcutta case Jasho la Dassee v. Upendra Nath 44 Ind. Cas. 671 where it was found necessary to pass a supplamentary final decree dealing with the portion undisposed of in the earlier final decree, the suit being one for partition. I do not think there can be any serious doubt that there is nothing illegal in passing more than one final decree, and in fact Mr. C.S. Venkatachariar does not go so far as to suggest it. What he does say is that such a course is so unusual that neither the Court nor the parties can be held to have contemplated it; and so far as the Court is concerned he points as an indication of intention to the omission to adjourn to a further date. He supports his argument by reference to Daniel's Chancery Practice, 8th Edn. Vol. 1, page 586, where the test whether a judgment is interlocutory or final is said to consist in whether it adjourns the consideration of the cause or not. Where there is final judgment, liberty to apply may be given without, however, altering the final nature of the judgment. I do not think, however, that inferences derived from Chancery Practice can be safely applied to procedure in India, and it seems to me that no conclusive inference can be drawn from the mere circumstance that the Court failed to provide any further hearing. We must, I think, look to the terms of the decree rather than speculate upon the Court's intentions, and ask ourselves what is the nature of this part of the so called final decree. The plaint was framed in terms customary to a suit of this character and asked for the realization and distribution of the assets. Normally then the final decree should be such as is given in Form No. 22 of Appendix D to the Code of Civil Procedure, providing for the distribution of the fund in Court which has been realised by the Receiver or otherwise. It is quite clear that the suit, when it was disposed of by the decree on 22nd March, 1915, had not been brought to its natural end, judged by these tests. In the Privy Council case Muhammad Abdul Majid v. Muhammad Abdul Aziz 19 A. 155 : 24 I.A. 22 : 7 Sar. 111 (P.C.), the trial Court had originally passed a decree for a declaration and for possession of immoveable property without deciding the question of mesne profits. About the mesne profits, indeed, the decree made no mention. Even so their Lordships held that the inquiry into meene profits in the suit should proceed; and the following passage deserves quotation: 'The Subordinate Judge had before him a case consisting of two parts; a question of title and an incidental question of account depending largely on the title. It was for the obvious advantage of the parties; and they proposed, that the first should be decided and the; second reserved for decision. In point of fact, the first part has been the subject of successive appeals by the defendant who successfully struggled the trial of the second part pending these appeals. If the Code forbade the parties and the Court so to arrange the disposal of a law suit, it would be a very starting thing. It is not pretended that the Code contains any such prohibition.'

11. These remarks, I think, apply mutatis mutandis to the present case. A decree means something which 'conclusivly determines' (a phrase substituted for 'decides' by the Code of 1908): 'the rights of the parties.' Here it has left undetermined and undisposed of the distribution of assets to be realised by defendant No. 1, and the duty of the Court has accordingly not been completely discharged. I hold, therefore, that upon this point the learned Subordinate Judge is clearly right, Even were the corectness of his decision less clear, it would scarcely be for this Court in revision to interfere where the Court below has declared its willingness to conduct the matters outstanding between the parties to their final conclusion.

12. Granting then that the directon to defendant No. 1 amounts to a preliminary decree, it is further contended that where, as here, there is no adjournment order, further application should have been made within the time prescribed, and Article 181 is said to prescribe that time. Whether this is so or not depends, I think, on whether it is to be held that between preliminary and final decree the suit is pending because it can hardly be contended that an application in a pending suit, as we ordinarily use that expression, is subject to limitation. Mr. Venkatachariar contends that after a preliminary decree has been passed the suit is not pending in the sense that the rights of the parties have still to be decided. Before going through some of the cases cited for this proposition, I will allude to the special case of mortgage suits. If; has no doubt been held that application for a decree absolute and for a personal decree under Order XXXIV, Rules 5 and 6 respectively are subject to Article 181: the decree-holder must apply within three years: see Gulasam Bibi v. Ahamadsa Rowther 19 A. 155 : 24 I.A. 22 : 7 Sar. 111 (P.C.); M. Venkatiah v. B, Venkata Subbiah 69 Iad. Cas. 366; A.I.R. 1922 Mad. 65 : (1922) M.W.N. 11 : 42 M.L.J. 51 : 30 M.L.T. 228 : 16 L.W. 198 : Rama Venkatasubba Iyer v. Shanmugham Pillai 21 Ind. Cas. 530 : (1913) M.W.N. 867 and Pellv. Gregory : AIR1925Cal834 . I do not think, however, that from these special cases a general proposition can be deduced. The rules under the Code make express provision for such application and the Court has no duty cast upon it in the absence of them. The view I take in the present case is that the Court should itself have disposed of the suit, and that the Court rather than the party was responsible for further action.

13. On the question of the pendency of tha suit I have been taken through a number of cases under the old Code, mainly originating in Madras and Calcutta. There was under that Code no such device as a preliminary and a final decree for the trial of partnership and partition suits, and different notions arose as to when the single decree should be passed and how much should be left over for execution, difficulties which no doubt gave rise to the introduction of the preliminary and final decrees, ln Seshan v. Rajagopalan 13 M. 236, the decree dassed for partition was in the nature of what we should now call a preliminary decree and the remainder of the operations had to be done in execution; In Appadu v. Venkata Ranga Rao 18 M.L.J. 23, on the other hand, the view taken was that in a partition suit the decree should ensue upon the actual division. The position was laid down in general terms by Bhashyam Ayyangar, J. at page 277 in Mallikarjunala Setti v. Lingamurthi Pentulu 25 M. 244 : 12 M.L.J. 279 with regard to partition suits. He had, of course, to deal with a single decree, and, when he said that a suit terminates only when the decree is fully effectuated and that it includes proceedings in execution, it may be conceded that the terms he used were used in a wider sense than we have to employ them here. The difficulties which arose in dealing with partition suits under the old Code are illustrated in Lakshmanan Chetty v. Ramanathan Chetty 28 M. 127 : 14 M.L.J. 436, where the learned Judges found it impossible to decide what precisely was the decree in the suit. These cases, however, are not of much assistance here. More in point is Srinivasa Mudali v. Ramaswamy Mudaly 30 Ind. Cas. 380 : (1915) M.W.N. 725 : 2 L.W. 693 : 18 M.L.T. 145. In that case a compromise decree for partition had been passed and the question arose whether an application for the appointment of a commission to work out the shares recoverable under it was barred by limitation. This depended oil whether the application was in execution or in the suit. The learned Judges held that such an order could have been made by the lower Court at any time of its own motion as a step in the disposal of the suit, and that there could be no question of any bar of limitation in connexion with the application for it.

14. Turning to the Calcutta case, Kedarnath Datt v. Uarra Chand Dutt 8 C. 420 related to a partition, and in 1870 a decree was passed directing a commission to issue to effect the partition, For reasons which I need not go into, no effectual steps were taken for over ten years, when the plaintiff applied for proceedings to continue. He was met by a plea of limitation, but Wilson, J. held that the application being one in a pending 'suit, the right to apply was a right which accrues from day to day, and, therefore, it was not barred by lapse of time. It will be noted that this related to a stage in the cause after the only decree then provided for by the Code had been passed. This case was followed by Stephen, J., in Surrendra Kishub Roy v. Khetter Krishto Mitter 30 C. 600 : 7 C.W.N. 517.

15. In the Full Bench case Puran Chand v. Radha Kishen 19 C. 132), it was held that where the decree provided that mesne profits should be ascertained in the execution department no rule of limitation attached to an application to ascertain them. The view taken was that for that purpose the suit was still pending, and that the Court was bound, even without any application, to fix a date for the inquiry. 'There is nothing in the Code,' the learned Judges say: 'compelling a person having the conduct of a pending suit to make formal application from time to time, asking the Court to proceed to judgment.'

16. This case was followed in Dwarka Nath Misser v. Barinda Nath Misser 22 C. 425, in regard to an application to appoint an arbitrator in a partition suit, and printed with the report is a judgment of Prinsep and Ghose, JJ., to the same effect. It follows a fortiori that, on the principle under-lying these decisions, an application for a final decree is an application in the suit and is not subject to any limitation.

17. As regards the position under the present Code the petitioner relied mainly on the Full Bench case Perumal Pillai v. Perumal Chetty 112 Ind. Cas 116; A.I.R. 1928 Mad. 914 : 51 M 701 : 55 M.L.J. 253 : 28 L.W. 164. The question referred for decision was whether Order XXII, Rules 3 and 4, Civil-Procedure Code, applied to cases of death after the passing of the preliminary decree. The answer given was that the provisions did not apply and that the suit did not abate so as to vacate the preliminary decree. This question does not strictly concern us, but Mr. Venkata-chariar has sought to derive from some observations of the learned Chief Justice who delivered the opinion the principle that a suit for all purposes is concluded by the preliminary decree. I have beer unable to discover any such unqualified proposition in the judgment. The principle relied upon was that the right of action had been determined before the death of the defendant by the passing of the prelimin-ary decree and the learned Chief Justice went on to say that this was so because 'the final decree is only by way of working out in detail the principles laid down and determined in the preliminary decree.'

18. It is nowhere said that the proceedings which take place between the two decrees are not in the nature of a suit; nor, of course, is it suggested that all the matters in issue between the parties are finally disposed of by the preliminary decree. Indeed it may often happen that most of the contentious work has to be done after a preliminary decree has been passed, and has to be settled by the final decree. It may be observed that the'learned referring Judges in that case assumed that the suit was still pending. In the Privy Council case Lachmi Narain Marwari y. Bal-makund Marwary 81 Ind. Cas 747 : A.I.R. 1924 P.C. 198 : 4 Pat. 61 : 51 I.A. 321 : 35 M.L.T. 143 : 47 M.L.J. 441 : 20 L.W. 491 : (1924) M.W.N. 707 : 10 C. & A.L.R. 1033 : 5 P.L.T. 623 : 22 A. L. J. 990 : 26 Bom. L.R. 1129 : 40 C.L.J. 439 : L.R. 5 A. (P.C.) 71 : 29 C.W.N. 391 : 1 C.W.N. 629 (P.C.), cited in this judgment, a case which related to a dismissal for default of a partition suit after the preliminary decree, the simple principle laid down is that: 'after a decree has once been made in a suit, the suit cannot be dismissed unless the decree is reversed on appeal. The parties have on the making of the decree, acquired rights or incurred liabilities which are fixed unless or until the decree is varied or set aside.'

19. I do not find, therefore, that this case is authority for the proposition for which it is cited.

20. It is clear to me that the suit continues for some purposes at least until the final decree; it would indeed be an anomaly if any decree could be reached by proceedings other than a suit. That being so, I have been shown no authority for the view that an application in a pending suit desiring the Court to proceed to judgment is governed by any rule of limitation. So far as the examples shown to me go, applications which are so governed will be founded not to be of this character. In Kalyani Pillai v. Thiruvenkadaswami Ayyangar 80 Ind. Cas. 85 : A.I.R. 1924 Mad. 695 : 47 M. 618 : (1924) M.W.N. 439 : 47 M.L.J. 154 : 20 L.W. 99 : 35 M.L.T. 50, the application was to bring on record the legal representative of a respondent to a Priyy Council appeal. Mangamma Nayakuralua v. Ramadasappa : AIR1925Mad981 related to execution Swaminath Pillay v. Rajagopala Mudaliar A.I.R. 1921 Mad. 124 was an unusual case where a trustee who had brought a suit died and application was made to transpose a co-trustee defendant as plaintiff. It is difficult to say whether in the interval between death and transposition the suit could be held to be pending. The case in Hindustan Bank v. Mehraj Din 55 Ind. Cas. 820 : 1 Lah. 187, related to the Companies Act. Indeed, the only case in point, Srinivasa Mudali v. Ramaswami Mudali 30 Ind. Cas. 380 : (1915) M.W.N. 725 : 2 L.W. 693 : 18 M.L.T. 145, to which I have already referred, appear to me very good authority against the application of the Limitation Act.

21. I think accordingly that the learned Subordinate Judge is right in his view that no question of limitation arises, as well as in the construction which he has placed upon the disputed passage in the decree. It is unnecessary for me to add, therefore, that, even had I felt less convinced of these propositions. I should much have doubted the desirableness of interfering in revision. The civil revision petition is dismissed with costs.

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