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Aiyagari Narayanamurty Vs. Dhalipala Venkataramayya - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported in15Ind.Cas.229
AppellantAiyagari Narayanamurty
RespondentDhalipala Venkataramayya
Cases ReferredSheosagar Singh v. Sitaram Singh
Excerpt:
.....borrower whose mortgage has invoked section 69 of the transfer of property act, is to file a civil suit and in such suit the court has power to grant injunction and to impose condition for the grant thereof--section 17; [a.p. shah c.j., f.m. ibrahim kalifulla & v. ramasubramanian, jj] proceedings under section 17 power of the tribunal to pass any interim order held, once the possession of the secured asset is taken, there would be no occasion for the tribunal to order redelivery of possession till final determination of the issue. in other words, it is only when the tribunal comes to the conclusion that any of the measures, referred to in section 13 (4) taken by the secured creditor are not in accordance with the provisions of the act and the rules made thereunder, then only the..........arises in the appeal before us, is whether the question regarding the binding character of the sale-deed was raised in the previous suit before the appellate court or not. the subordinate judge, who heard the appeal in the suit of 1880, mentions two points, one of them being the question regarding the genuineness of the deed, as the points which he had to decide in that appeal, but does not say that those were the only points raised in the appeal. we are not prepared to hold that other points were not argued before him, including the question whether the sale-deed was binding or not. we need not, therefore, decide the somewhat difficult question of law whether, when an appellant has not argued against the findings on some of the points and confines his argument in the appellate court.....
Judgment:

1. In this case, the judgment of the Subordinate Judge is based on the finding on the 2nd issue, viz., whether defendants are estopped from asserting that their vendor got the suit property from her father under the decree in O.S. No. 566 of 1880 on this Court's file and whether it is a collusive decree. He finds that, as a matter of fact, the decree in that suit is res judicata. In coming to this conclusion, he proceeds on what is apparently a misreading of the judgment of the Appellate Court in that suit. He says that the Appellate Court in the above-mentioned suit decided: 'that the sales made by Ranaappa in favour of her sons-in-law were true and bona fide and binding on the ground that they were effected in order to discharge the debts contracted by her husband and herself as well.' There is no such finding in the judgment of that Court. All that is found there is that the sales made in favour of the sons-in-law were genuine, and, having regard to the scope of the suit, that finding was enough to dispose of the case against the plaintiff in that suit. The only difficulty that arises in the appeal before us, is whether the question regarding the binding character of the sale-deed was raised in the previous suit before the Appellate Court or not. The Subordinate Judge, who heard the appeal in the suit of 1880, mentions two points, one of them being the question regarding the genuineness of the deed, as the points which he had to decide in that appeal, but does not say that those were the only points raised in the appeal. We are not prepared to hold that other points were not argued before him, including the question whether the sale-deed was binding or not. We need not, therefore, decide the somewhat difficult question of law whether, when an appellant has not argued against the findings on some of the points and confines his argument in the Appellate Court to some particular issues, the decision of the Appellate Court which goes against him will be res judicata on the points not argued. We cannot say that, in the present instance, the omission to decide the question of the bona fides and binding character of the sale-deed in favour of the son-in-law was due to the view which the appellant's Pleader in that case took of his client's case or to the fact that the Appellate Court thought that it was not necessary to go into questions other than the genuineness of the sale-deed. If the omission was, as is quite possible, owing to the discretion exercised by the Appellate Court in not going into any unnecessary question, then the decision in Sheosagar Singh v. Sitaram Singh 24 C.P 616 : 24 I.A. 50 : 1 C.W.N. 297 covers the case and the judgment is not res judicata on the points not decided. We, therefore, set aside the judgment of the lower Appellate Court and remand the case for disposal according to law on the other issues in the case on the evidence on record. The lower Appellate Court will also find on the question whether the sale-deed was made for purposes binding on the appellants in the previous case. On this issue, the parties will be permitted to adduce fresh evidence. Coats will abide the result.


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