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Manicka Chetti Vs. Kuppusami Asari and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai
Decided On
Reported inAIR1926Mad644; 97Ind.Cas.613
AppellantManicka Chetti
RespondentKuppusami Asari and ors.
Cases Referred and Sivasubramania Pillai v. Rakkumuthu Mooppan A.I.R.
Excerpt:
- .....decision of the lower court on this point is correct.2. secondly, it has been contended that the decree passed was a preliminary decree and was therefore not executable. if the decree was really a preliminary decree, it would no doubt be necessary to have a final decree before the application for execution of the decree could be entertained. but in this case i am satisfied that the decree pased is not a preliminary decree. as has been pointed out in arunadati kumari v. ram niranjan [1920] 58 i.c. 299 and sivasubramania pillai v. rakkumuthu mooppan a.i.r. 1924 mad. 645 it is not absolutely necessary that in every mortgage suit there should be a preliminary decree be fore a final decree is passed. if the terms of the compromise are that a decree should be forthwith passed, a decree which.....
Judgment:

Venkatasubba Rao, J.

1. The learned Subordinate Judge has held that time is not of the essence of the contract. This is apparently also the view taken by the District Munsif. The suit was instituted for redemption of a property mortgaged. By consent of parties a decree was passed which fixed a date for the payment of the mortgage amount. In these circumstances there is nothing which will justify the inference that the parties intended that the time should be of the essence of the contract. I agree, therefore, that the decision of the lower Court on this point is correct.

2. Secondly, it has been contended that the decree passed was a preliminary decree and was therefore not executable. If the decree was really a preliminary decree, it would no doubt be necessary to have a final decree before the application for execution of the decree could be entertained. But in this case I am satisfied that the decree pased is not a preliminary decree. As has been pointed out in Arunadati Kumari v. Ram Niranjan [1920] 58 I.C. 299 and Sivasubramania Pillai v. Rakkumuthu Mooppan A.I.R. 1924 Mad. 645 it is not absolutely necessary that in every mortgage suit there should be a preliminary decree be fore a final decree is passed. If the terms of the compromise are that a decree should be forthwith passed, a decree which is capable of execution, it is perfectly competent to a Court to give effect to the compromise and pass such a decree. Agreeing with the lower Court I hold that the decree that was passed in this case was an executable decree. My decision on both the points is against the petitioner. C.M.S.A. fails and is accordingly dismissed with costs.


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