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Sri Dandayutha Pani Devasthanam Vs. Muthayanswami Chetti - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported in123Ind.Cas.193
AppellantSri Dandayutha Pani Devasthanam
RespondentMuthayanswami Chetti
Cases ReferredMadden v. Chappani
Excerpt:
civil procedure code (act v of 1908), section 73 - rateable distribution--inferior court ordering satisfaction of decree in ignorance of decree against same judgment-debtor before superior court--jurisdiction of court to order restitution. - .....district judge to order restitution of the amount taken by the chetti in order that there might be rateable distribution. the district judge held that he had no jurisdiction to pass such an order and hence this petition.4. part of the argument on behalf of the petitioner has been directed towards showing that if the sub-court held assets in consequence of the chetti's sale, such assets would be available for rateable distribution by the district court. so much the respondent is prepared to concede, and authority for the proposition will be found in periya karupan chettiar v. sundaram chetti 98 ind. cas. 628 : 51 m.l.j. 661 : a.i.r. 1927 mad. 67. it is not the respondent's case that the sale by the sub-court prevails against the attachment by the district court. he merely contends that.....
Judgment:

Jackson, J.

1. Petitioner is a devasthanam, and respondent is a Chetti. The devasthanam attached its judgment-debtor's property in execution of a decree in the District Court, Madura, in November, 1924.

2. The Chetti had attached the same property, and brought it to sale in execution of a decree in the Sub-Court, Dindigul. Out of the sale proceeds he satisfied his decree.

3. The devasthanam petitioned the District Judge to order restitution of the amount taken by the Chetti in order that there might be rateable distribution. The District Judge held that he had no jurisdiction to pass such an order and hence this petition.

4. Part of the argument on behalf of the petitioner has been directed towards showing that if the Sub-Court held assets in consequence of the Chetti's sale, such assets would be available for rateable distribution by the District Court. So much the respondent is prepared to concede, and authority for the proposition will be found in Periya Karupan Chettiar v. Sundaram Chetti 98 Ind. Cas. 628 : 51 M.L.J. 661 : A.I.R. 1927 Mad. 67. It is not the respondent's case that the sale by the Sub-Court prevails against the attachment by the District Court. He merely contends that when the money has been paid out by the Sub-Court, it is too late for the District Court to call it back.

5. The petitioner relies strongly upon Madden v. Chappani 11 M. 356, where apparently the same Court was executing decrees for a Mrs. Madden and for a Pillai, both of whom had taken out attachments against the same judgment-debtor. The Pillai brought property to sale and set off his decree amount against the purchase-money, Mrs. Madden claimed that the purchase-money was an asset available for rateable distribution and should not have been paid in and then paid out to the Pillai alone, which was what the process of setting off amounted to. This Court agreed that the lower Court could only have allowed the set off subject to Mrs. Madden's right to rateable distribution, and the Pillai was bound to pay in the purchase-money which was rateably due. Such refund could be enforced by an order in execution by way of restitution.

6. Against this ruling the respondent relies upon an unreported decision of a Bench of this Court C.R.P. No. 586 of 1926. There the attachments were in the Courts of a sub-Judge and a Munsif The Munsif sold the property and distributed the proceeds to two judgment-creditors. A third judgment creditor who had an attachment in the Sub-Court demanded that these assets should be called back by the Munsif to enable him also to share in the rateable distribution. The question before this Court was whether the Munsif had jurisdiction to do so, and it was held that the Munsif had not acted illegally or without jurisdiction, because it was through no fault of his that he had never heard of the attachment in the Sub-court; and, therefore, he had no jurisdiction to rectify his error ex debito justitice.

7. The matter then resolves itself into the question, when is the conduct of the Court such, that it may itself take steps for rectification in the ends of justice? It is held in Madden v. Chappani 11 M. 356 that it can take action when it has overlooked an attachment which is pending before it, and, in the unreported case, that it cannot take action when it has ignored an attachment in another Court which was never brought to its notice.

8. With all respect, I consider that the distinction drawn in these two cases affords a very just rule of law. The learned District Judge, in effect, followed the unreported case which is relevant to the facts before him, and I see no reason to interfere. The petition is dismissed with costs.


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