MUTHU KARAU VENA ALAGAPPA CHETTIAR Vs. KANAKASABAI PILLAI

JUDGEMENT

(1.) This appeal can be disposed of with reference to only one of the grounds taken, that the lower Appellate Court erred in its decision in favour of plaintiff s right to proceed by suit. The 1st defendant was under obligation, under Exhibit Al, a compromise decree, to endorse certain promissory notes in plaintiff s favour and to execute a power-of-attorney and do other things within a fixed time. He did not comply with his obligation; and plaintiff, instead of compelling him to do so by process under Order XXI, Rule 34 or 32, has now sued him and the present appellants, certain trustees alleged to be in possession of his property, for damages on the ground that the notes are now time-barred and worthless.

(2.) The lower Appellate Court has held that such a suit will lie on the strength of certain authorities, of which (to mention only those in which Section 47 of the Civil Procedure Code of 1908 was pleaded) Saratmani Debee v. Bata Krishna 35 C. 1100 : 12 C.W.N. 614. was decided in special circumstances and Rolintavita Mama Amma v. Kolintavita Haji Kandi 31 M. 37 : 17 M.L.J. 543 : 3 M.L.T. 97. and Quamzal Huda v. Kumud Nath 7 Ind. Cas. 248. dealt with causes of action arising subsequently to, and independently of, the decree. Here the cause of action is not that the notes are barred, but that 1st Defendant failed to comply with the decree and enable plaintiff to sue on them, before they became so barred; and the authorities referred to are not in point. In the absence of authority, we are not prepared to accept the proposition involved in plaintiff s contention that a judgment-debtor, who does not voluntarily satisfy a decree, commits an actionable wrong, for which the decree-holder can recover compensation by separate suit. Taking this view, we must hold that the suit is not sustainable.

(3.) We have been asked, in the alternative, to treat the plaint, as an execution petition and to allow the plaintiff to recover damages under Order XXI, Rule 32. But, apart from any objections to such execution on its merits, we are not, in view of the delay, after which this relief has been claimed, and the course of the litigation, prepared to use our discretion to do so.