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Murugesa Mudali Vs. Sama Goundan and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Judge
Reported inAIR1916Mad727; 31Ind.Cas.102
AppellantMurugesa Mudali
RespondentSama Goundan and anr.
Excerpt:
civil procedure code (act v of 1908), section 47, section xxi, rule 101 - petition by judgment-debtor objecting to sale in execution--objections by third party as well--order, whether appealable. - .....as trustees of a temple.2. the respondents contended that the shops did not belong to the judgment-debtor temple solely but to five other institutions and further contended that even the interest of the debtor temple in the corpus of the shop property could not have been and was not legally sold but only its right to receive a share of the rents and profits.3. we must take it that the petition was filed partly under section 47 of the civil procedure code (which has been held to apply also to disputes between decree-holder-purchasers and judgment-debtors) and partly under order xxi, rule 101. as only one order was passed in respect of both these contentions by each of the lower courts and as that order has been based mainly on the contention raised by the respondents as trustees of the.....
Judgment:

1. The respondents put in a petition in the Court of the District Munsif to cancel the delivery of certain shops purchased by the decree-holder in execution of a decree passed against the respondents as trustees of a temple.

2. The respondents contended that the shops did not belong to the judgment-debtor temple solely but to five other institutions and further contended that even the interest of the debtor temple in the corpus of the shop property could not have been and was not legally sold but only its right to receive a share of the rents and profits.

3. We must take it that the petition was filed partly under Section 47 of the Civil Procedure Code (which has been held to apply also to disputes between decree-holder-purchasers and judgment-debtors) and partly under Order XXI, Rule 101. As only one order was passed in respect of both these contentions by each of the lower Courts and as that order has been based mainly on the contention raised by the respondents as trustees of the judgment-debtor temple, we hold that an appeal lies against the order of the District Munsif to the District Court and from the order of the District Court to this Court. We accordingly overrule the preliminary objection raised by the respondents Vakil to the entertainment of this appeal.

4. As regards the merits, it is clear to us from the records that all the right, title and interest of the judgment-debtor temple in the shops could be brought to sale under the terms of the decree, and were so brought to sale in execution and were purchased by the decree-holder and not merely the right to share of the rents and profits.

5. The lower Courts orders are set aside as based on an untenable preliminary ground.

6. The petition case will be remanded to the District Munsif for the passing of fresh orders after giving findings on the following points:

(1) To what share in the corpus of the properties sold was the judgment-debtor temple entitled?

(2) If the respondents as trustees of the other institutions are entitled to occupy the shops in virtue of those institutions owning substantial shares in the shops, whether the appellant is not entitled even to the delivery of the shops under Order XXI, Rule 96, of the Civil Procedure Code?

7. Costs hitherto will be costs in the cause.


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