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1914 Supreme(Mad) 326
IN THE HIGH COURT OF MARAS
Oldfield, S Aiyar
Sabella Appanna
Versus
Mallidi Appanna And Ors.
Decided On : 20 August, 1914
The judgment-debtor has the right to sue for relief of attached lands, as established by legal authority and precedent.
Headnote:
Judgment-debtor - Right to sue for relief of attached lands - The judgment-debtor has the right to sue for relief of attached lands, as established by legal authority and precedent. The judgment-debtor is directly interested in making a particular portion of his property available for the payment of his debt, and therefore has the right to bring a suit of the nature contemplated in Order XXI, Rule 63, of the Code of Civil Procedure.
Fact of the Case:
Plaintiff, a judgment-debtor, sued for a declaration of his right to certain lands attached by the 2nd defendant and for the setting aside of the summary order passed on the latter's claim petition.
Finding of the Court:
The court found that the judgment-debtor has the right to sue for relief of attached lands, as established by legal authority and precedent. The court also noted that the discussion of the evidence in the judgment was not satisfactory, but there was no absence of evidence or disregard of evidence on the points in question which would justify interference in second appeal.
Issues: The main issue was whether the judgment-debtor had the right to sue for relief of attached lands and for setting aside the summary order passed on the claim petition.
Ratio Decidendi: The judgment-debtor has the right to sue for relief of attached lands, as established by legal authority and precedent. It is unnecessary for the judgment-debtor to include a prayer for possession in his plaint, and the court does not need to consider whether he is in possession or not.
Final Decision: The appeal failed and was dismissed with costs.
1. Plaintiff, a judgment-debtor, sued for a declaration of his right to certain lands attached by the 2nd defendant and for the setting aside of the summary order passed on the latters claim petition.
2. It is contended, firstly, that only a decree-holder can sue for relief of this nature. It has not, however, been explained how a judgment-debtor is not as directly interested in making a particular portion of his property available for the payment of his debt as the decree-holder is in securing payment from that portion. And, as regards authority, Guruva v. Subbarayudu 13 M. 366 and Muthusamy Mudaly v. Ayyhlu Baihadu 13 M.L.J. 367 are against the appellants contention. The latter case refers to Sardhari Lal v. Ambika Pershad 15 C. 521 : 15 I.A. 123 (P.C) : 5 Sar. P.C.J. 172 : 12 Ind. Jur. 210 as reconcilable with the judgment-debtors right to sue. Authority in this Presidency being in favour of that right, it is unnecessary to deal at length with Kedarnath Chatterji v. Rakihal Das Chatterji 15 C. 674 : 13 Ind. Jur. 104 on which the appellant relies. We find against his contention. As it is open to the judgment-debtor to bring a suit of the nature contemplated in Order XXI, Rule 63, of the Code of Civil Procedure, it is not necessary for him to include a prayer for possession in his plaint, and it is unnecessary for us to consider whether he is in possession or not.
3. The remainder of the argument has been directed towards showing that the judgment is, as regards particular points, not based on or against the evidence. We cannot call the discussion of the evidence in the judgment satisfactory. But we do not think that there was an absence of evidence or disregard of evidence on the points in question which would justify our interference in second appeal.
4. The appeal, therefore, fails and is dismissed with costs.
