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Madras High Court
Jathavedan Nambudri, (Dead) … vs M. Kunju Achan Avergal And Ors. on 17 August, 1906
Equivalent citations: (1906) 16 MLJ 433


1. The appellant’s case has little or no merit. He claims by virtue of an assignment obtained from several of the sons of Krishna Pattar, a mortgagee of the plaintiff. All these persons were parties to a suit by the plaintiff for redemption of the mortgage and after issue of notice, but before settlement of issues, the suit was compromised between the plaintiff on the one hand and the 1st and 2nd defendants, two of the brokers, on the other. By the compromise it was arranged that a renewal should be granted within a given time and in the event of the defendants failing to do all that was necessary to obtain the renewal, the plaintiff was to obtain possession of the land on payment of the mortgage money. A decree was passed in terms of this compromise. In the compromise it was stated that it was entered into without reference to the other defendants, and though their names were entered in the heading of the decree there was no order as regards them, which could be taken as adjudicating upon any matter as between them and the plaintiff. The 1st and 2nd defendants not having done what was necessary to entitle them to obtain the renewal, the plaintiff paid into Court the amount due by him and got an order for delivery of the land. A tenant who was in occupation of the land, and who was one of the defendants who had not joined in the compromise, obstructed the delivery, and on the plaintiff’s making application to the Court to remove the obstruction, his application was registered as a suit under Section 331, C.P.C. Subsequently the present appellant was added as a party defendant and the rights of all parties have been tried and a decree for redemption passed in favour of the plaintiff.

2. Mr. T.R. Ramachandra Aiyar for the appellant contended that the procedure adopted was wrong and the matter was one which should have been investigated and disposed of under Section 244, C.P.C., only, and as that section prohibits a separate suit, what has been done must be quashed and the plaintiff must be referred to his proper remedy.

3. We are unable to accede to this argument. As pointed out by Mr. P.R. Sundara Aiyar, Section 331 directs that when any obstruction is caused by a person other than the judgment debtor, the decree-holder’s application should be registered as a suit. The obstructing tenant was not a judgment-debtor, as denned in the Code, no decree having been asked against him, and the application of the plaintiff was in our opinion rightly registered as a suit. In Vibhudapriya Thirthaswami v. Vidyanidhi Thirthaswami (1893) I.L.R. 22 M. 131, the attention of the Court does not seem to have been drawn to the provisions of this section and the Pull Bench case of Ramaswami Sastrulu v. Kameswaramma (1900) I.L.R. 23 M. 361, was not a case of obstruction like the present.

4. Mr. Ramachandraiyar urged that even in this view it was not competent to the Court to make a decree for redemption. We are unable to follow this contention. The decree obtained by the plaintiff in the course of the execution of which he was obstructed, was a decree for redemption, and as the parties resisting the execution established no claim independent of the mortgage right relied on by the plaintiff, the decree given is virtually an order for the execution of the decree, the carrying out of which had been obstructed. In the view we have taken it is unnecessary to consider the other questions raised in the argument on either side. We dismiss the second appeal with costs.

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