V P KRISHNAN Vs. PAYANKALATH NARAYANAN NAYAR

JUDGEMENT

(1.) This is an application to revise the order of the learned Subordinate Judge of Ottapalam confirming the order of the District Munsiff of Ottapalam dismissing the execution petition for attachment and sale of the share of the respondent in the property of the tarwad to which he belonged. The petitioner obtained a decree in S.C.S. No. 382 of 1933 on the file of the District Munsiff of Ottapalam on 29th November, 1933, against the respondent on a personal debt incurred by him. In execution of the same the respondent's share in the tarwad property, which is stated to be one-ninth, was attached on 28 August, 1934. A claim was preferred on behalf of the tarwad on 10 September, 1934, objecting to the attachment. While the execution petition and the claim petition were both pending, four out of the five members of the tarwad presented a petition to the Sub-Collector of Malappuram under Section 43 of the Marumakkathayam Act for registering the tarwad as impartible and it was accordingly registered on the 15 December, 1934. This fact was brought to the notice of the District Munsiff, who held that, as the order of registration had become final under Section 46 of the Act, he had no longer any jurisdiction to deal with the petition, and as before the sale the registration was effected, further proceedings in execution could not be had. He therefore dismissed the execution petition. This order was confirmed by the learned Subordinate Judge. It is this order that is canvassed as illegal in revision by Mr. Kuttikrishna Menon on behalf of the petitioner.

(2.) A preliminary objection has been taken by Mr. Govinda Menon that this order is not liable to be revised under Section 115, Civil Procedure Code, on the ground that no question of jurisdiction is involved in the case. It seems to us that the lower Court acted illegally in declining to exercise its jurisdiction by refusing to further proceed with the execution and order sale in pursuance of the attachment. Both the lower Courts fell into error in thinking that by virtue of Section 46 once the registration of the tarwad is effected, the Court has no jurisdiction to proceed with the execution. The petitioner was not questioning the finality of the order of registration. The question is whether in spite of registration the creditor in pursuance of the attachment is not entitled to bring the property to sale. Where a Court taking a wrong view of the law assumes jurisdiction or declines to exercise jurisdiction, it will be a matter for interference under Section 115, Civil Procedure Code. Vide Ramaswami Goundan V/s. Muthu Velappa Gounder (1922) 44 M.L.J. 1 : I.L.R. 46 Mad. 536 . The very case relied on by Mr. Govinda Menon, namely Balakrishna Udayar V/s. Vasudeva Aiyar (1917) 33 M.L.J. 69 : L.R. 44 I.A. 261 : I.L.R. 40 Mad. 793 (P.C.) is a case in which on a wrong view of a particular section of Act XX of 1863 jurisdiction was assumed and the Court interfered in revision. We therefore overrule the preliminary objection.

(3.) The question in this case is, has the attachment which has been effected ceased to subsist on the subsequent registration of the tarwad as impartible? Mr. Govinda Menon sought to contend that the share of a member is incapable of attachment but in the judgment just delivered in Subramanyan Tirumurupu v. Naraina Tirumurupu , we have held it is capable of attachment and it is unnecessary to deal with that matter at length. By virtue of the Marumakkathayam Act, the position of a tavazhi is assimilated to that of a member of a Mitakshara family in provinces where he is under an incapacity to alienate but nevertheless he has a right to claim a partition of his share. The position of such a member is, to use the language of Wallace, J.: that he has at any definite period of time a present vested interest in the fractional share which would be his, if a partition was then and there made, and which would, by a partition at his will and pleasure, be converted into a separate interest.