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Peetikayilakath Mammad Haji Vs. Alam Ibran Haji - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Judge
Reported inAIR1916Mad789(1); 31Ind.Cas.393
AppellantPeetikayilakath Mammad Haji
RespondentAlam Ibran Haji
Cases ReferredRamanathan Chettiar v. Levvai Marakayar
Excerpt:
civil procedure code (act v of 1908), section 47, order xxi, rule 58 - judgment-debtor, death of--legal representative--title of third person set up--order--appeal. - .....but to the tarwad. there seems to us no distinction in principle between this case and the cases in which the person who was a party to the suit or was brought on record as representative of the judgment-debtor claimed the property as trustee for certain other persons or as shebait of a temple. our attention was drawn to the ruling of kuriyali v. mayan 7 m.k 255, but that ruling was considered by a full bench decision of this court in ramanathan chettiar v. levvai marakayar 10 m.l.j. 64, where it appears to have been dissented from. it seems to us that the rulings in 23 madras and in 89 calcutta lay down the correct law. in this case, therefore, no appeal lay to the subordinate judge. the petition must be allowed and the decree of the subordinate judge set aside and that of.....
Judgment:

1. In this case, the question argued was whether an appeal lay to the Subordinate Judge from the order of the District Munsif. The point is covered by the principle of the rulings in a Full Bench decision, Ramanathan Chettiar v. Levvai Marakayar 10 M.L.J. 64, and a very recent decision of a Full Bench of the Calcutta High Court, Kartick Chandra Ghosh v. Ashutosh Dhara 12 Ind. Cas. 163 In these cases the person who was brought on record as the representative of the judgment-debtor in the first case or was a party to the suit itself as in the Calcutta case claimed the property, in one case as a trustee and in the other case as shebait of a temple, and it was held that such matters were not covered by Section 244 of the old Code corresponding to Section 47 of the present Code. In his counter-petition, the respondent before us claims the property as karnavan of a tarwad. The judgment-debtor, Seeyali, and his brother formed a tavazhi. The judgment, creditor obtained a money decree in which he attached the property alleged to belong to Seeyali and on the latter's death, the present respondent was brought on the record as his legal representative. The claim he put forward in respect of the property was that it belonged not to the judgment-debtor, but to the tarwad. There seems to us no distinction in principle between this case and the cases in which the person who was a party to the suit or was brought on record as representative of the judgment-debtor claimed the property as trustee for certain other persons or as shebait of a temple. Our attention was drawn to the ruling of Kuriyali v. Mayan 7 M.K 255, but that ruling was considered by a Full Bench decision of this Court in Ramanathan Chettiar v. Levvai Marakayar 10 M.L.J. 64, where it appears to have been dissented from. It seems to us that the rulings in 23 Madras and in 89 Calcutta lay down the correct law. In this case, therefore, no appeal lay to the Subordinate Judge. The petition must be allowed and the decree of the Subordinate Judge set aside and that of the District Munsif restored. The respondent will pay the costs of the petitioner. The Civil Miscellaneous Second Appeal No. 95 of 1913 is dismissed with costs.


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