PUZHAKKAL EDOM ALIAS PUTHAN EDOM KARNAVAN AND KAIKARYAKARTHAMU VALIA ACHAN AVERGAL Vs. MAHADEVA PATTAR

JUDGEMENT

(1.) The first question argued before us is on the merits of the case. As a matter of fact, money was advanced by the respondent as alleged by him, and we think there was necessity on the part of the Karnavan who held the office previous to the appellant to borrow money for Tarwad purposes. As regards the fact of the advances, the only evidence is, on the side of the respondent which supports his case, and that case is corroborated by the production of receipts obtained from different persons to whom payments were made either on account of maintenance or salaries or for payment of kist. No doubt, the respondent himself was in debt to a large extent but he gives evidence that he borrowed money from different persons in order to make a loan to Andi Achan. He brought the loan to the notice of the Court and it must have been known to the appellant in the suit.

(2.) On the question of necessity the Edom consists of 160 members and the income, all told, taking it at the highest, does not amount to more than Rs. 12,000 a year, and the admission of the appellant himself is to the effect that unless jungle trees are leased from time to time the income is not sufficient to meet the maintenance charges, after paying the necessary out- goings. There is evidence to show that at the time when Andi Achan borrowed from the respondent he had large payments to make, amounting to nearly Es. 3,000 and he did make this payment in full, We are, therefore, unable to say that the finding of the subordinate Judge on this point is wrong.

(3.) Then it is pointed out that the present appellant and a number of other members of the family had instituted a suit against Andi Achan for removing him from the Karnavan s office and in the course of that suit an injunction was obtained restraining him from managing the property. We take it that the effect of the different orders passed in that connection was to prohibit his contracting loans. Because the injunction seems to be very widely worded-- restraining Andi Achan from carrying on the management of the property which would have authorised him to contract loans for the purpose--he however obtained permission afterwards to raise Rs. 3,000 by leasing jungle trees. But then the evidence shows that he was unable to find such a lessee. Therefore he applied to the respondent and obtained from him the amount on the bond in this suit. It has been argued that since there was an injunction restraining Andi Achan from borrowing money, this bond executed to the respondent is not enforceable even though the money was advanced for necessary purposes of the family and was utilised for such purposes. We have not been referred to any authority which supports the proposition, for the English case, Eastern Trust Company v. Mckenzie Mann and Co. Ltd. (1918) A.C. 760 at page 769 cited by Mr. C.V. Ananthakrishna Aiyar does not seem to touch the question at all. On the other hand, the ruling in the Delhi and London Bank Ltd. v. Ram Narain (1887) I.L.R. 9 A 497 which has been followed in Manokar Das v. Ram Autar Pande (1903) I.L.R. 25 A. 431 lays down the law to the contrary. We think the effect of an injunction like this is what is laid down in the Civil Procedure Code and it will be going much too far to say, that a person in the position of Andi Achan being so restrained is not liable to repay the money which he has in fact borrowed, and if the money was borrowed and utilised for the benefit of the tarwad that the tarwad is not liable. We therefore uphold the judgment of the Subordinate Judge and dismiss the appeal with costs.