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Balusami Iyer Vs. Venkatasami Naicken Alias T.S. Rangaswamy Aiyangar, Official, Receiver - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported inAIR1924Mad95; 75Ind.Cas.219
AppellantBalusami Iyer
RespondentVenkatasami Naicken Alias T.S. Rangaswamy Aiyangar, Official, Receiver
Cases Referred and Natesa Ayyar v. Annasaml Ayyar
Excerpt:
civil procedure code (act v of 1908), order xlv, rule 15 - orders of privy council, execution of--procedure--persons interested in execution whether must apply separately--execution, limitations on. - .....of the order by way of restitution or otherwise, because they were not parties to the privy council appeal. it is true that they were not impleaded as parties, the 27th defendant, the successor-in-interest of the 26th defendant, having been the appellant; and it is true that they claim as lessees from the deceased 26th defendant. but we cannot accept either generally or with reference to the particular circumstances of this case, the principle that only the successful appellant can execute the order. that principle has been supported by reference to kassim saib v. luis 17 m. 82 : 6 ind. dec. 56 and natesa ayyar v. annasaml ayyar 33 m. 426. but those decisions turned on the special circumstances in each case, and on reference to the record in the second we find that the decree.....
Judgment:

1. The lower Courts order is objected to, first, on the ground that the respondents before us, petitioners before it, were not entitled to apply for restitution when they had not, under Order XLV. Rule 15, obtained transmission of the order of His Majesty in Council to the lower Court, the order being the basis of their claim. Order XLV. Rule 15, no doubt, does make it part of the procedure for the enforcement of orders of His Majesty in Council that the person desiring to obtain execution of such an order shall obtain its transmission. But in the present case transmission has already been obtained by the 27th defendant, the successful appellant in the Privy Council. It would be inconvenient, if not impossible, to hold that each person interested in the execution of a particular order shall obtain a separate transmission when that order has already been transmitted. This ground of appeal is not sustainable.

2. The next ground on which the appeal is argued, is that the petitioners are not entitled to apply for execution of the order by way of restitution or otherwise, because they were not parties to the Privy Council Appeal. It is true that they were not impleaded as parties, the 27th defendant, the successor-in-interest of the 26th defendant, having been the appellant; and it is true that they claim as lessees from the deceased 26th defendant. But we cannot accept either generally or with reference to the particular circumstances of this case, the principle that only the successful appellant can execute the order. That principle has been supported by reference to Kassim Saib v. Luis 17 M. 82 : 6 Ind. Dec. 56 and Natesa Ayyar v. Annasaml Ayyar 33 M. 426. But those decisions turned on the special circumstances in each case, and on reference to the record in the second we find that the decree under execution did contain an explicit limitation sufficient to justify the conclusion reached. We have not been shown how it is consistent with any general principle that any limitation should be applied to the execution of the decree resulting from the order unless such restrictions can be founded by the actual language of the decree on order itself.

3. Turning to the decree and order in this case, in order to see whether the contention before us is sustainable with reference to the particular circumstances, we find that the order is without qualification and the Subordinate Judge also in the decree, which it restored without qualification refused the relief which the plaintiff asked against the defendants Nos. 1 and 2 except in respect of a small sum claimed for quit-rent cocoanuts, etc., with which we are not concerned. In view of the unqualified language used we cannot read into either order or decree any intention to exclude from the relief granted to the present respondents. It is said that the case as between them and the plaintiffs were not on the same footing as the case between the successful appellant, 27th defendant, and the plaintiffs, because in their case a plea of estoppel might have prevailed against them. We do not feel called upon to inter into that when (as we have stated) the result of the Privy Council Appeal is clear and amounted to an adjudication that the plaintiff was not entitled to retain against them the land or the profits or the sum of money representing the profits, which the lower Court awarded to them in restitution.

4. The appeal fails and is dismissed with costs.


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