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T.T.K.K. Kumare Appan Srirangachariar Vs. T.V.A.K.T. Annamalai Chettiar - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai
Decided On
Reported inAIR1935Mad647
AppellantT.T.K.K. Kumare Appan Srirangachariar
RespondentT.V.A.K.T. Annamalai Chettiar
Cases ReferredRajah of Kalahasti v. Venkatadri Rao
Excerpt:
- - venkatadri rao 1927 mad 911 that it 'may be accepted as good law. ' his view that it does not settle the point whether a judgment-debtor is entitled in execution to adduce evidence to show that the decree is invalid and inexecutable does not appear to be a good reason for not giving effect to the law laid down in rajah of kalahasti v. the executing court, like all courts has, before passing judicial orders, necessarily the power to take evidence whenever it is found to be necessary in order to enable it to pass orders. i fail to see why, if the court can decide a question on the admission of parties, it should lose that power to decide it simply because the parties do not choose to make any admissions and the court has to take evidence for the purpose of deciding it......raise this question in the course of execution and directed execution to proceed. on appeal, the district judge confirmed the order.2. in the other case, the subordinate judge of chittoor took the contrary view. he held that it was open to the judgment-debtor to raise this objection, and after taking evidence he held that the properties were really inalienable and that the sale could not go on. in the appeal from this order the district judge, though he was of opinion that if he had to decide whether the properties were inalienable or not, he should have agreed with the subordinate judge, adhered to the view expressed by him in the other appeal, which had been decided three days before, and therefore allowed the appeal with costs. the learned district judge refers in particular to the.....
Judgment:

Pandrang Row, J.

1. These are appeals from the decrees in two appeals preferred to the District Court of Chittoor, namely A.S. No. 203 of 1931 and 89 of 1932, dated 6th October 1932 and 3rd October 1932, respectively. The question that arose for decision in both the appeals was one and the same, namely whether certain properties which were proclaimed for sale in execution of two mortgage decrees, could be sold in execution. The contention of the judgment-debtor wa3 that the properties constituted an Acharyapurusha service inam which was inalienable according to law, and that even though the decree provided for the sale of the properties, the executing Court should not actually sell them because the law prohibits such sale. In one case, the District Munsif of Tirupati held that the judgment-debtor was not entitled to raise this question in the course of execution and directed execution to proceed. On appeal, the District Judge confirmed the order.

2. In the other case, the Subordinate Judge of Chittoor took the contrary view. He held that it was open to the judgment-debtor to raise this objection, and after taking evidence he held that the properties were really inalienable and that the sale could not go on. In the appeal from this order the District Judge, though he was of opinion that if he had to decide whether the properties were inalienable or not, he should have agreed with the Subordinate Judge, adhered to the view expressed by him in the other appeal, which had been decided three days before, and therefore allowed the appeal with costs. The learned District Judge refers in particular to the decisions in Rajah of Rajah of Vizianagaram v. Dantivada Cheliah (1905) 28 Mad 84 and Rajah of Kalahasti v. Venkatadri Rao 1927 Mad 911, but distinguishes those cases from the case before him on the ground that in the former there was no dispute about the inalienable nature of the properties brought to sale, as the same was either admitted by the parties or was apparent on the face of the record, whereas in the case before him it was not admitted and the decision of the question required the taking of evidence.

3. The decisions referred to above were certainly binding on the learned District Judge, and the District Judge himself says with respect to the ruling in Rajah of Kalahasti v. Venkatadri Rao 1927 Mad 911 that it 'may be accepted as good law.' His view that it does not settle the point whether a judgment-debtor is entitled in execution to adduce evidence to show that the decree is invalid and inexecutable does not appear to be a good reason for not giving effect to the law laid down in Rajah of Kalahasti v. Venkatadri Rao 1927 Mad 911. He draws a distinction which makes no difference so far as the power or the duty of the executing Court is concerned. The executing Court, like all Courts has, before passing judicial orders, necessarily the power to take evidence whenever it is found to be necessary in order to enable it to pass orders. The power to take evidence cannot be denied to a Court ': which has jurisdiction to decide any question. If, as was decided in 1927 Mad 911 , where the execution of the decree would involve the infraction of a provision of law enacted in the public interest, the executing Court has the power to decide whether execution should be allowed as directed in the decree, it follows that the executing Court in order to decide this question whether execution should proceed or not has necessarily the power of taking such evidence as may be necessary to decide it. It is obvious moreover that the question, namely, whether execution should proceed or not, is a question relating to the execution of the decree, and that such a question can be decided by the executing Court, and only by that Court. No separate suit would lie for the purpose. I fail to see why, if the Court can decide a question on the admission of parties, it should lose that power to decide it simply because the parties do not choose to make any admissions and the Court has to take evidence for the purpose of deciding it. The Court's jurisdiction can in no way be dependent on the, point whether evidence has to be recorded or not.

4. I am therefore of opinion that the learned District Judge was not right in his view that in this case the executing Court was not competent to decide the question simply because the decision of the question required the taking of evidence. The decrees appealed from must be set aside and the appeals remanded to the lower appellate Court for disposal according to law after deciding the question whether as a matter of fact the properties in question are inalienable according to law. The appellants are entitled to have their costs of these appeals from the respondents, only one set of vakil's foes being allowed. The costs in the Courts below will follow the result and should be provided for in the revised decrees of the lower appellate Court.


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