PERAM KISTAMA NAYUDU Vs. MINOR SANKARAYYA NAYUDU BY NEXT FRIEND ANDGRANDFATHER NALLAPPA NAYUDU ALIAS NARASIMHALU NAYUDU AND ANR.
HIGH COURT OF MADRAS
PERAM KISTAMA NAYUDU
Minor Sankarayya Nayudu By Next Friend Andgrandfather Nallappa Nayudu Alias Narasimhalu Nayudu And Anr.
Click here to view full judgement.
King, J. -
(1.) THESE petitions arise out of an order in execution passed by the learned District Munsiff of Tiruvallur. Execution proceedings were taken by the decree -holder in O.S. No. 379 of 1940, who had obtained a decree against three defendants on the strength of an endorsement on a promissory note. He sought to execute that decree against the sons of the second and third defendants and the question before the learned District Munsiff was whether he was entitled to do so. The learned District Munsiff quoted two decisions of this High Court - -one reported in Ramanathan Chettiar v. : AIR1942Mad161 which according to the learned District Munsiff laid down the proposition that if a decree was obtained by the endorsee of a promissory note and the endorsement did not transfer the debt as well as the right to sue upon the promissory note, there could be no action in execution against any one other than the person liable under the promissory note. The learned District Munsiff has ignored the fact that in Ramanathan Chettiar v. : AIR1942Mad161 , the position of the parties was not that of father and son, but that of manager and junior member of a Hindu joint family, and that a special distinction was drawn by the learned Judges themselves who decided the case between the case and the case of a father and son between whom there existed the doctrine of pious obligation. The learned District Munsiff then went on to quote a decision of my own reported in Rangaswami Goundan v. : AIR1942Mad335 , in which the question under Hseussion was in what circumstances the father of a Hindu family might be said to have represented his sons. This is a case which appears to have no direct connection with the matter at issue before the learned District Munsiff, for It has never been claimed by the decree -holder that he can proceed in execution against the sons on the ground that they were in effect parties to the suit represented by their fathers. In either case, it will be clear that it was impossible for the learned District Munsiff to have rightly applied either of these judgments to the facts before, him. The section of the Procedure Code which governs this case is Section 60 and the learned District Munsiff would have done better to have referred to the Procedure Code itself rather than to authorities upon points which were not directly connected with the decision of the case before him. Under Section 60 of the Code of Civil Procedure, if the father has a disposing power, which he may exercise for his own benefit, over the property of his sons, that property is attachable in execution. So long as there is no partition between father and sons, it is obvious that that power exists. Clearly therefore under Section 60, the learned District Munsiff ought 0 to have allowed the execution of the decree against the sons of the second and third defendants.
(2.) LEARNED Counsel who has appeared for the respondents, has not contested the fact that the learned District Munsiff was wrong on a point of law. He does, however, contend that this is not a case in which there should be any interference under Section 115 with the decision of the learned District Munsiff. These petitions have already been admitted by another learned Judge of this Court, and they reveal so complete a disregard of what must be described as an elementary proposition of law, that in my opinion it is impossible to say that the learned District Munsiff has not acted in the exercise of his jurisdiction with material irregularity. I am not prepared, therefore, to dismiss these revision petitions upon the ground that they do not directly involve a question of jurisdiction. As already indicated, the order of the learned District Munsiff is wrong and must be set aside and the applications made before him by the respondents be dismissed with costs. The respondents must pay the costs of the petitioner in one petition - -C.R.P. No. 849 of 1943 - -only of these two civil revision petitions.;
Copyright © Regent Computronics Pvt.Ltd.