P K MURUGAN Vs. VALLABHAN KANTAN STYLED KUNHANUNNI

JUDGEMENT

(1.) O. S. No. 42 of 1951 on the file of the Court of the Subordinate Judge of Ottapalam was a suit filed by the appellant, petitioner against the two respondents-defendants for the recovery of a sum of Rs. 8542-8-0 from the first defendant personally and from the income of his stanom properties. The amount was made up of principal and interest on two promissory notes, the first dated 66- 1950 for Rs. 5000 and another dated 9-6-1950 for Rs. 3000 executed by the first defendant in favour of one S. V. Gopalakrishna Iyer and endorsed to the plaintiff on 28-7-1951. The second defendant has been impleaded in the suit as the first defendant under a document dated 10-8-1951 authorised the second defendant to make collections of the rents due to him from the various tenants of his and has therefore made it difficult for the plaintiff to have re-course to those rents for the realisation of the amounts due to him under two promissory notes.

(2.) Pending the suit I. A. No. 1291 of 1951 was filed before the lower Court under Order 38, Rule 5, C. P. C., for attachment before judgment of the rents due to the first defendant which the second defendant was authorised to collect under the deed dated 10-8-1951 which the plaintiff impugns as an invalid document brought about with the object of defeating his legitimate claims:

(3.) The contention of the first defendant in the suit was that the two promissory notes were executed by him owing to coercion and undue influence of the plaintiff in the name of one Gopalakrishna Iyer whom he did not at all know and that the promissory notes were not supported by consideration. Such being the case it was alleged that as the plaintiff was not a holder in due course he has obtained no valid right to sue on the two promissory notes. At the time of the hearing of I. A. No. 1291 of 1951 the plaintiff produced the two promissory notes on the foot of which the suit had been laid. The learned Subordinate Judge after examining them came to the conclusion that on the face of the promissory notes there had been assignments of them in favour of the plaintiff and since those assignments are not properly stamped as required under Article 23, Stamp Act, until the proper stamp duty and penalty were paid it was held that the plaintiff had ho right to claim any relief. The learned Subordinate Judge also went into the question as to whether there was any Justification for the application of the provisions of Order 38, Rule 5. C. P. C., for attachment of the rents before judgment on the merits and found that such a course was not justified and so dismissed the application. But he impounded the two documents and sent them to the Collector for levying proper stamp duty and penalty. This was done on the application by the plaintiff under Sections 10 and 151 and Order 17, Rule 1, C. P. C., for staying the trial of the suit. On that the learned Judge held that the stamp duty and penalty should be paid in accordance with the finding he gave in I.A. No. 1291 of 1951 within two weeks from 16-1-1952 and if that was not done the documents would be Impounded and sent to the Collector. A further order was made on 4-2-1952 that in default by the plaintiff of the payment of stamp duty and penalty the documents would be impounded and sent to the Collector.