BAVA C VAITHILINGA MUDALIAR Vs. CHIDAMBARAM PILLAI

JUDGEMENT

(1.) The first defendant-appellant objects to execution on two grounds : first, that the Mohini allowance which is sought to be attached is an endowment for a special purpose, and therefore it cannot be made available to a creditor who has obtained a decree against the Ulturai kattalai in general terms ; secondly, that the allowance does not constitute either the assets or the income of the Ulturai kattalai.

(2.) The first objection assumes that the Mohini allowance is a part of the assets of the Ulturai kattalai ; but the argument is that the kattalai provides for various objects, and that the Mohini allowance is earmarked for a certain specific purpose. Granting but not deciding that this is so, it has not been shown that the debt in respect of which the decree was passed was not incurred for a purpose which would be a legitimate charge on the Mohini allowance. On the other hand, from the judgment it would appear that the debt was incurred for carrying out the objects of the kattalai and performing all kinds of duties in connection with them, and there is no trace anywhere that the amount borrowed was expended in connection with any particular object. Next the debt was incurred by the Receiver who fully represented the kattalai and the 1 and 2nd defendants being the trustees of the kattalai equally represented it in the suit in which the decree in question was passed. The decree contained clear words that the plaintiff was to recover the amount from the income and assets of the Ulturai kattalai. The executing Court cannot go behind the decree and it will not be open to the defendant to say that a particular item of income or assets should be excluded. [See Zamindar of Ettiyapuram V/s. Chidambaram Chetty and Ors. (1920) ILR 43 M 675 at 686-7 : 39 MLJ 75 (FB) ]. Sir John Wallis who delivered the judgment of the Full Bench thus observes: This is the view taken in Hart Govind V/s. Narsingrao Konherrao Deshpande (1913) ILR 38 B 194 and Kalipada Sarkar V/s. Hari Mohan Dalal (1916) ILR 44 C 627 is also a recent authority for the proposition that the Court executing the decree cannot go behind it.

(3.) This was followed in Sami Mudaliar V/s. Muthiah Chetty . In Kalipada Sarkar v. Hari Mohan Dalal (1916) ILR 4 C 627 the learned Judges said: It is indisputable that the Court executing a decree must take the decree as it stands and has no power to go behind the decree or entertain an objection to the legality or correctness of the decree.