Content Provider | Supreme Court of India |
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e-ISSN | 30484839 |
Language | English |
Access Restriction | NDLI |
Subject Keyword | 1908 lndian Limitation Act |
Content Type | Text |
Resource Type | Law Judgement |
Jurisdiction | India |
Case Type | Appeal |
Court | Supreme Court of India |
Disposal Nature | Appeal Dismissed |
Headnote | Limitation - Suit filed beyond time - Decree, if a nullity - Point of limitation not raised in High Court, if entertainable by Supreme Court - Receiver's possession, if must ensure to successful party - Appeal - Forum - Abrogated by subsequent legislation - If and when can be challenged - Travancore high court act, 1099 (IV of 1099), s. 11(1) , as repealed by Ordinance II of 1124 - Indian Limitation Act, 1908 (9 of 1908), s.3, Arts. 47, 142. One lttiyavira, the deceased father of the appellant purchased properties and paid part of the con•consideration for the transaction in cash for the balance executed two hypothecation bonds in favour of his vendors, Ramalinga Iyer and Raman Vela Yudhan. Ranalinga Iyer assigned his hypothecation bond in favour of one Sankara Rama Iyer. He had executed a promissory note in favour of one Anantha Iyer who, after his death, instituted a suit against his son Sankara Subha Iyer for recovery of the amount thereunder and obtained a decree. Treating the deed of assignment executed by Ramalinga Iyer in favour of Sankara Rama Iyer as a sham document, Anantha Iyer attached the mortgagee rights of Ramalinga Iyer in the hypothecation bond and eventually purchased them. In a partition in Anantha lyer's family, the rights under the hypothecation bond purchased by him were allotted to his share and to that of his brother. These two persons instituted a suit against lttiyavira being 0. S. No. 59 of 1093 and obtained a decree for realisation of the amount against him and transferred their decree to one Venkiteswara Iyer who at the court auction held in execution of that decree, purchased the hypothecated properties which are properties in the suit and eventually obtained possession of the properties on 12.7.1099. Before the institution of O. S. 59 of 1093 by Anantha Iyer and his brother, Ittiyavira had executed a sale deed of these properties on 8.10. 1093 in favour of his son, the appellant. The appellant was not made a party to O. S No. 59 of 1093. Ittiyavira died in the 1107 . and on 2. 2. 1108, Venkiteswara Iyer sold all the suit properties to the plaintiffs respondents. Thereafter the respondents instituted proceedings under s. 145 of the Code of Criminal Procedure in the Court of Magistrate claiming their possession over the suit properties which was disputed by the appellant. The properties were attached and placed in the possession of the Receiver appointed by the court. Eventually, the court held that the appellant's possession over the properties be maintained until otherwise ordered by the competent civil court. . The High Court ofTravancore affirmed- the order of the Magistrate and the appelant was handed over the possession of the properties by the Receiver. Consequently the respondents instituted a suit out of which this appeal arises; The trial court dismissed the suit and that decision was reversed by the High Court. It was contended before this Court that the decree obtained by Anantha Iyer in O. S. 59/1093 was a nullity because the suit was barred by time . It was further urged that the appeal before the High Court should have been heard not by a Division Bench of merely two Judges, but by a Bench of three Judges as provided in s. II (l) of the Travancore High Court Act, 1099. |
Judge | Hon'ble Mr. Justice J.R. Mudholkar |
Neutral Citation | 1963 INSC 2 |
Petitioner | Ittavira Mathai |
Respondent | Varkey Varkey And Another |
SCR | [1964] 1 S.C.R. 495 |
Judgement Date | 1963-01-15 |
Case Number | 372 |
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