Posted On by &filed under High Court, Madras High Court.

Madras High Court
Nilakanta Shanbhog vs Imam Sahib And Anr. on 11 November, 1892
Equivalent citations: (1893) 3 MLJ 134


1. The first point taken in this second appeal is that the suit is barred by limitation. The argument for appellant (defendant) is that the cause of action arose at the time of the purchase by plaintiff in 1882 and therefore that the suit brought more than 6 years after that date is barred, whether the case is governed by Article 62 or Article 120 of the second schedule to the Limitation Act. In our opinion the lower courts were right in holding that the cause of action arose at the date of the decree in Original Suit No. 65 of 1887 declaring that Subbamma the judgment-debtor whose hypothecation right plaintiff purchased, had no saleable interest in the property. Plaintiff could not have brought the present suit prior to that decree, for until then he maintained that Subbamma had a saleable interest. The present suit is really brought under Section 315 of the Code of Civil Procedure which had been held to apply to suits, Pachayappan v. Narayana, I. L. R. 11 M, 269. No special period of limitation is fixed for such suits and therefore Article 120 of the second schedule to the Limitation Act applies. The decree in Original Suit No. 65 of 1887 was in 1888 and therefore the suit brought in 1889 is not barred.

2. The next point taken on behalf of the defendant in this appeal is that it has not been proved in this suit that Subbamma whose interest in the hypothecated property plaintiff purchased, at the court auction had no saleable interest. It is argued that the onlyevidence of this offered on behalf of plaintiff was Exh. A, copy of the judgment in Original Suit No. 65 of 1887, and this is no evidence against present defendant who was no party to that suit. We think this objection to the decree must prevail. The lower courts have apparently admitted the copy of judgment Exh. A as evidence against defendant, because as a witness he supported present plaintiff’s contention in that suit which the District Munsif holds makes him ” constructively ” a party to the suit. This is no good reason for treating a judgment in a suit to, which defendant was no party as evidence against him of the truth of the matters it decides. The words in Section 315 of the Civil Procedure Code, “when it is found that the judgment-debtor had no saleable interest in the property &c.,” must in our opinion be taken to mean ” when it is found in some proceeding by which the judgment-creditor is bound.” To compel the judgment-creditor to refund the purchase-money of property brought to sale in execution merely because in some proceeding between other parties a court has decided that the judgment-debtor had no saleable interest would be contrary to all principles of justice. On the ground that it is not proved by any legal evidence in this case that the judgment-debtor whose interest in the hypotheca plaintiff purchased had no saleable interest therein, we think plaintiff’s suit should be dismissed. The decrees of the lower courts are reversed and plaintiff’s suit is dismissed with costs throughout. The memoraiadum of objections is also dismissed with costs.

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