TMI Blog1963 (1) TMI 52X X X X Extracts X X X X X X X X Extracts X X X X ..... the balance, he executed two hypothecation bonds in favour his vendors on the same date. One of the bonds was executed in favour of Raman Velayudhan and the amount secured thereunder was ₹ 308-8-0. In respect of this amount, items of property Nos. 3, 5, 14 and 18 were hypothecated with Raman Velayudhan by Ittiyavira. The other bond was in favour of Ramalinga Iyer and under this bond. Ittiyavira hypothecated with him items Nos. 1, 2, 4, 6-13, 151-7, and 19-23 and also the remaining items, subject to the hypothecation bond in favour of Raman Velavudhan, for securing an amount of ₹ 2,191-80 On 3-1.0-1082, Ramalinga Iyer assigned his hypothecation bond in favour of one Sankara Rama Iyer ( Iyen as described by the High Court). The parties are in dispute concerning this transaction. According to one of them, the deed of assignment Ex. V was a sham document and was not intended to take effect while according to the other, it was a genuine document. It would appear that Ramalinga Iyer had executed a promissory note in favour of one Anantha Iyer ( Iyen as described by the High Court). After the death of Ramalinga Iyer, Anantha Iyer instituted a suit against his son Sankara Sub ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nantha Iyer and his brother and the contention raised by the respondents is that the sale in favour of the appellant is not a genuine transaction and therefore he was not a necessary party to the suit. Ittiyavira died in the year 1107 and on 2-2-1108, Venkiteswara Iyer sold all the suitproperties to the plaintiffs-respondents. Thereafter, the respondents instituted proceecdings under s. 145 of the Code of Criminal Procedure in the court of the Magistrate, First Class, Perumbavoor claiming that they were in possession of the suit properties, that the appellant was disputing their possession and that there was a likelihood of a breach of peace because of the attempt of the appellant to obstruct their possession. In these proceedings, the properties were attached and placed in the possession of the Receiver appointed by the court. Eventually, the court held that the properties were in the possession of the appellant and ordered that his possession be maintained until otherwise ordered by a competent Civil Court. The order of the Magistrate was affirmed by the Travancore High Court and thereafter, the Receiver handed over the possession of the properties to the appellant. Conseque ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent litigation. If the suit was barred by time and yet, the court decreed it, the court would be committing an illegality and therefore the aggrieved party would be entitled to have the decree set aside by preferring an appeal against it. But it is well settled that a court having jurisdiction over the subject matter of the suit and over the parties thereto, though bound to decide right may decide wrong; and that even though it decided wrong it would not be doing something which it had no jurisdiction to do. It had the jurisdiction over the subject-matter and it had the jurisdiction over the party and, therefore, merely because it made an error in deciding a vital issue in the suit, it cannot be said that it has acted beyond its jurisdiction. As has often been said, courts have jurisdiction to decide right or to decide wrong and even though they decide wrong, the decrees rendered by them cannot be treated as nullifies. Learned counsel, however, referred us to the decision of the Privy Council in Maqbul-Ahmed v. Onkar Pratap Narain A.I.R. (1935) P.C. 83, and contended that since the court is bound under the provisions of s. 3 of the Limitation Act to ascertain for itself whether the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y would be entitled under s. 14 of the Limitation Act to the deduction of the entire period during which they were prosecuting their suit with due diligence and in good faith in the court of the Munsiff. Had the suit been barred by time when it was instituted in the court of the Munsiff a plea to that effect could have been taken by the appellant; The defendants do not appear to have done so. It, therefore, follows that the suit must have been within time, when it was instituted in the court of the Munsiff. After the plaint was represented in the District Court at Parur, the appellant filed a written statement. In para 12 of the plaint the respondents have stated thus : The cause of action for this suit has arisen within the jurisdiction of this court from 15th Kanni 1113, the date of the final order in the summary. case. The only answer to this plea of the respondents which the appellant has given in the written statement is to be found in para 13 of the written statement which reads thus The plaintiffs have no manner of right what- soever, as alleged in para 10 of the plaint. Even if the plaintiffs had any rights, they have become barred by limitation; and they need n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e plaint been instituted in the court of the Munsiff say two months before the expiry of the limitation, the suit would have been within time on 4-3-1118 when the plaint was re-presented to the District Court, computing the period of limitation even from the date of the original order. Moreover, the appellants could well have raised the question of limitation in the High Court in support of the decree which had been passed in their favour by the trial court. Had they done so, the High Court would have looked into the records before it for satisfying itself whether the suit was within time or not. The point now raised before us is not one purely of law but a mixed question of fact and law. No specific ground has even been taken in the petition made by the appellant before the High Court for grant of a certificate on the ground that the suit was barred by time. In the circumstances, we decline leave to the appellant to raise the point of limitation before us. The next contention of the learned counsel is that the suit is governed by Art. 142 of the Limitation Act and as the respondents have not established that they were in possession within 12 years thereof, their suit is barred by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it is prayed that the Court may be pleased, to declare my possession and rights etc. over the properties mentioned in the decree in the above suit and to hold that the said properties are not liable to be sold for the said decree, and to allow this petition with costs. It would thus be clear that he has only claimed his right to the possession of the properties and not that he had obstructed the delivery of possession of the properties by the Amin to the auction purchaser. No doubt, the District Judge has recorded an order thereon to the effect that since the appellant does not say that he was dispossessed his application is not tenable. It seems to us that in the absence of any averments of the kind we have already indicated, the appellant cannot derive any benefit from his application. It was contended in the High Court and it is contended also before us that the appellant had sent an obstruction petition to the Amin, but he has neither produced a certified copy of that petition nor examined the Amin in proof of what he has said. In the. circumstances, agreeing with the High Court, we hold that there can be no doubt that actual delivery of possession of the suit properties ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ocument for registration before the Sub-Registrar himself obtained the document back from him. There is no evidence to show that thereafter he handed it over to Sankara Rama Iyer or that the latter had accepted the transaction. The major part of the consideration recited in Ex. V consisted of amounts alleged to be due from Ramalinga Iyer to his Creditors which the assignee was supposed to discharge. The balance of the consideration was not paid at the time of the execution of the said document but was said to have been adjusted against the amounts due from Ramalinga Iyer to the assignee Sankara Rama Iyer. There is no evidence to show that any of the debts recited in the document were actually due from Ramalinga Iyer or that any money had been received by him from Sankara Rama Iyer. The appellant does not even say that he had made enquiries concerning the consideration of this document. It is further to be borne in mind that though the document was executed in the year 1082, right uphill now, neither Sankara Rama Iyer nor any person claiming under him has made any attempt to realise the amounts due under the hypothecation bond. The High Court has pointed out thus : If the assig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n, ₹ 1,000/either paid or agreed to be paid by him to his mother in discharge of a debt by his father to her, and ₹ 500/- which had already been paid to his you- nger brother in discharge of a debt which the father owed to him. We agree with the High Court that the recitals excite suspicion. There is no proof of these payments except the interested testimony of the appellant himself. In the proceeding under s. 145 of the Criminal Procedure Code, the appellant had stated that he had obtained the necessary funds for obtaining Ex. XXIX from his mother; but in view of a recital in that document that he had to pay ₹ 1000/- to his mother, it would appear that he has prevaricated. Then again, the younger brother who is said to have loaned ₹ 500/- to the appellant's father was only 14 years, of age at the time of execution of that document. It is impossible to believe that a young boy like him could have been in the position to loan ₹ 500/- to his father. It was urged before us by Mr. Paikedy that what the parties really meant was that the appellant was to pay the sums of ₹ 1,000/- and ₹ 500/- respectively to his mother and younger brother so ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt of Travancore-Cochin. The rights of parties to prefer appeals to that High Court were governed initially by 'Ordinance 11 of 1124 and later by Act V of 1125. These provisions came into being subsequent to, the institution of the suit. Therefore, the rights of a person aggrieved by the decision of a suit instituted prior to the coming into force of Act V of 1125 were only those which were conferred by that Act. A litigant has no right to contend that a Tribunal before whom he should have taken an appeal when he instituted the suit, should not be abolished. The Legislature has full power to enact a 'jaw of that kind and it is not contended before us that the repeal of the Travancore High Court Act was un- constitutional. It would, therefore, follow that whatever rights may have vested in the party in the matter of filing an appeal were abrogated by competent legislature. New rights were conferred in place of those which were taken away and it is only the new rights which could be availed of. After the new rights were conferred even they were modified in one respect and that was with regard to the hearing of certain kinds of appeals by a Full Bench. The rights to have the a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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