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C. Venkatasubbaramiah Vs. Nambura Ramiah Sethi - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported inAIR1914Mad66; 24Ind.Cas.622
AppellantC. Venkatasubbaramiah
RespondentNambura Ramiah Sethi
Cases Referred and Ramalinga Chetty v. Anantha Chariar
Excerpt:
receiver, suit against - leave of court not obtained, effect of. - .....the proper course for the appellate court to take is to set the decree, passed in the absence of leave, aside and remand the case in order that the plaintiff may have an opportunity to obtain the necessary leave before proceeding with the litigation. sitting as a court of revision, i should in any event hesitate before adopting such a suggestion in the present case, since in it the objection based on absence of leave was taken in the written statement by the defendants and disregarded by the plaintiff. but on its merits also the contention must be rejected. the only authorities cited for it are the american decisions, referred to at page 297, high on receivers, 4th edition : whilst the rule, insisting on the obtaining of leave as a condition precedent to the institution of a.....
Judgment:

1. The petition is argued first on the ground that the suit, brought without the leave of the Court against a Receiver, was unsustainable.

2. This contention is sanctioned by abundant authority, including the decisions of Kamatchi Animal v. Sundaram Ayyar 26 M. 492. and Ramalinga Chetty v. Anantha Chariar 18 Ind Cas. 122 : 24 M.L.J. 350 : 13 M.L.T. 303 : (1913) M.W.N. 287, to cite only those of this High Court.

3. It is argued for the respondents that this objection to the suing of a Receiver without leave is not one to the jurisdiction of the Court in which the suit is brought, and that, therefore, though any decree passed may be unsustainable, the proper course for the Appellate Court to take is to set the decree, passed in the absence of leave, aside and remand the case in order that the plaintiff may have an opportunity to obtain the necessary leave before proceeding with the litigation. Sitting as a Court of revision, I should in any event hesitate before adopting such a suggestion in the present case, since in it the objection based on absence of leave was taken in the written statement by the defendants and disregarded by the plaintiff. But on its merits also the contention must be rejected. The only authorities cited for it are the American decisions, referred to at page 297, High on Receivers, 4th Edition : whilst the rule, insisting on the obtaining of leave as a condition precedent to the institution of a suit, has been acted on in English decisions and in those of the Calcutta and Bombay High Courts as well as in those of this Court above referred to.

4. In these circumstances petitioner's objection to the suit must prevail. The petition is allowed, the lower Court's decision being set aside and the Small Cause suit dismissed with costs in both Conrts.


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