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Ammasi Kutti Gounden Vs. Appalu Alias Krishnaswami Naicken - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported inAIR1916Mad1164; 29Ind.Cas.234
AppellantAmmasi Kutti Gounden
RespondentAppalu Alias Krishnaswami Naicken
Cases ReferredAnanth Lakshmi Ammal v. Kunnanchankarath Sankaran Nair
Excerpt:
civil procedure code (act v of 1908), section 115 - patent error of procedure--interference in revision--suit on promissory note assigned by undivided son--succession certificate, whether necessary--question--of want of certificate raised for the first time in appeal--appellate court's duty to give plaintiff an opportunity of producing certificate. - .....out that this is a most irregular exercise of jurisdiction. the point was not raised by the appellant before the sub-judge. the question whether the promissory note was given for a family debt or the separate asset of the father would have to be determined before it can be ruled that a certificate is necessary. the further question whether, when by a fiction of law the claim relates back to the original debt, a certificate should be produced had to be determined. in the face of these difficulties and without giving the parties an opportunity of adducing evidence, the sub-judge reverses the decision given on the merits on a highly technical and by no means an undisputed legal point. i have no hesitation in saying that if ever a court's corrective jurisdiction is to be called in aid to.....
Judgment:

Spencer, J.

1. An objection has been taken that this is not a case in which we can interfere in the exercise of our revisional powers under Section 115 of the Code of Civil Procedure.

2. An objection was taken only at the hearing of the appeal in the lower Court that no decree should have been passed when the plaintiff had not produced a succession certificate.

3. The Subordinate Judge thereon decided that there was no necessity to send the case back to the lower Court and proceeded to set aside the District Munsif s decree and to dismiss the plaintiff's suit.

4. In doing so the Subordinate Judge committed, in my opinion, an obvious error of procedure.

5. The objection having been taken at that late stage he should in fairness to the plaintiff have given him an opportunity of making good the defect brought to notice in the appeal. The matter does not stop there. Both the lower Courts having found that there was no debt, Section 4 of the Succession Certificate Act does not apply to the facts of this case at all. Again both Courts having found that plaintiff was a holder in due course, having obtained a transfer of the suit promissory note from the undivided minor son of the promisee, represented by his mother and guardian, no succession certificate could have been granted to the plaintiff. The judgment of the Subordinate Judge is most unsatisfactory and he committed a clear error of procedure in dismissing the suit on his findings of fact.

6. As to the power of this Court to interfere when a subordinate Court dealing with a suit of a small cause nature commits an error of procedure patent on the face of the record, I am in accord with the views expressed by my learned brother in Subramania Pattar V. Narayana Pattar 28 Ind. Cas. 189 : 2 L.W. 230, which has the support of Full Benches of this Court in Manisha Eradi v. Siyali Koya 11 M.P 220 : 12 Ind. Jur. 49 and Vuppuluri Atchayya v. Sir Kanchumarti Venkata Seetarama Chandra Rao 18 Ind. Cas. 555 : 24 M.L.J. 112 : 18 M.L.T. 60 and of another Bench in Ananth Lakshmi Ammal v. Kunnanchankarath Sankaran Nair 18 Ind. Cas. 579 : (1913) M.W.N. 101 : 13 M.L.T. 123 : 24 M.L.J. 205.

7. We set aside the lower Appellate Court's decree and remand the appeal for disposal in the light of the above observations. The petitioner will have his costs in this Court. The costs in the Courts below will be provided for in the revised decree.

Seshagiri Aiyar, J.

8. I entirely agree. The facts are these. The plaintiff claims to recover a sum of money by virtue of an assignment from the undivided son of the payee of a promissory note. It was found by both the lower Courts that no debt was due to the original payee; the Munsif gave a decree on the ground that as the plaintiff was a holder in due course, the fact that the defendant was not really indebted to the assignor's father, was no bar to the plaintiff recovering. In this view, there is no debt due to the father for which a certificate could have been obtained. If by a fiction of law, as argued by Mr. Seshachari, the claim is to recover the original debt, even then, the assignment being from the undivided son no certificate is necessary. In either view, the applicability of Section 4 of the Succession Certificate Act dees not arise, and the lower Appellate Court acted with material irregularity in the exercise of its jurisdiction. I must point out that this is a most irregular exercise of jurisdiction. The point was not raised by the appellant before the Sub-Judge. The question whether the promissory note was given for a family debt or the separate asset of the father would have to be determined before it can be ruled that a certificate is necessary. The further question whether, when by a fiction of law the claim relates back to the original debt, a certificate should be produced had to be determined. In the face of these difficulties and without giving the parties an opportunity of adducing evidence, the Sub-Judge reverses the decision given on the merits on a highly technical and by no means an undisputed legal point. I have no hesitation in saying that if ever a Court's corrective jurisdiction is to be called in aid to protect parties the present one is an eminently fit one for the exercise of that jurisdiction.

9. I agree in the order proposed.


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