NANJUNDA CHETTY Vs. YPRLMLLAKSHMANAN CHETTIAR

JUDGEMENT

(1.) The question at issue in these two appeals is whether two applications for execution filed by the decree-holder on 17 February 1936 were or were not in accordance with law. The prayer in each application was for the arrest of defendant 1. The decrees as they then stood amended did not in either case make defendant 1 personally liable, but were only against the family properties in his hands. Both Courts below have held that these applications were in accordance with law.

(2.) In appeal it is argued that the applications were not in accordance with law as the relief asked for was one which the decree did not permit of being granted. If this premise is correct, I think the conclusion must follow. Ramakrishna Kadirveluswami V/s. Eastern Development Corporation Ltd. (1917) 43 I.C. 537 (Mad.), and Pandarinath Bapuji V/s. Lilachand Hatibhai (1888) I.L.R. 13 Bom. 237, are instances in which this legal principle has been applied. But I am bound by a Bench decision of this Court to hold that the premise is not correct. That decision is Ramachandra Naidu V/s. Tirupathi Naidu (1916) 35 I.C. 614, and it deals with precisely similar facts. It is there held in effect that the granting of a decree against assets in a judgment-debtor's hands does not necessarily preclude execution against him personally. In certain circumstances which are provided for by Section 52(2) of the Civil P. C. such a mode of execution may be permitted. It is also pointed out that the judgment-debtor in that case was not asked to explain whether such circumstances existed or not which is also true here. I find that in Rustomji's Commentary on the Limitation Act it is doubted whether this decision is good law--but as it has never been overruled in Madras or, so far as I am aware, dissented from in any reported decision, it is binding upon me. The result is then that these appeals must fail and are dismissed with costs.

(3.) Leave refused.