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Smart Summary

Structured Summary of the Opinion — Civil Miscellaneous Second Appeal

Factual and Procedural Background

One T.K. Nambiar mortgaged a property to the appellant's father. The mortgagee sued for the mortgage money and obtained a decree for sale. The appellant, as legal representative of the decree-holder, executed the decree and in the sale that followed the respondent purchased the property for Rs. 825.

Subsequently, junior members of T.K. Nambiar's tarwad sued seeking a declaration that the mortgage decree and sale were not binding on them and for possession. They obtained a decree and in execution they obtained possession of the property, thereby depriving the respondent (the auction-purchaser) of possession.

The respondent filed an application under Sections 47, 147 and 151, Civil Procedure Code, seeking a refund of the purchase money. The District Munsif ordered a refund. On appeal, the District Judge confirmed the order except for a deduction of the poundage fee. The appellant (legal representative of the decree-holder) filed the present appeal.

Two questions were referred to the Full Bench: (1) whether the respondent is entitled to a refund at all even by way of a suit; and (2) whether the respondent is entitled to obtain a refund by way of an application in execution.

Legal Issues Presented

  1. Whether the auction-purchaser (respondent) is entitled to a refund of the purchase money at all, even by way of a regular suit.
  2. Whether the auction-purchaser is entitled to obtain the refund by way of an application in execution (i.e., by execution proceedings under the Civil Procedure Code) rather than by a regular suit.

Arguments of the Parties

Appellant's Arguments

  • The appellant contended that the respondent was not entitled to a refund at all, even by way of a regular suit.
  • The appellant's chief contention was that the respondent was not entitled to obtain a refund by way of an application in execution.
  • Mr. Ramakrishna Aiyar, appearing for the appellant, referred to the decision in Sowdaminee Chowdrain v. Kishen Kishore Poddar (1869) 12 W.R. 8 (F.B.) to support the position that a general right of refund had been negatived on the ground that there was no warranty by the Court or by the decree-holder.

Respondent's Arguments

  • The respondent applied under Sections 47, 147 and 151, Civil Procedure Code, seeking a refund of the purchase money after being deprived of possession.
  • Before the Full Bench the respondent argued that the present execution application might be regarded as a regular suit (an argument the Full Bench noted was not part of the specific reference and should be dealt with by the Division Bench).

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court in this Opinion
Sowdaminee Chowdrain v. Kishen Kishore Poddar (1869) 12 W.R. 8 (F.B.) Held that a general right to refund was negatived on ground there was no warranty by the Court or decree-holder. The opinion notes this decision but concludes the Legislature did not adopt its view when framing later Codes; the decision is therefore not followed as authoritative for the present Code.
Dorab Ally Khan v. Abdool Azeez (1878) L.R. 5 I.A. 116 : I.L.R. 3 Cal. 806 (P.C.) Case of refund based on failure of consideration where writ of fieri facias was issued without jurisdiction; discussion focused on covenants in conveyance. The Court held this case did not help the appellant because it was not a sale under the Civil Procedure Code by the Court and was decided on different facts (lack of jurisdiction of Sheriff).
Mohideen Imbrahim v. Mahomed Mura Levai (1912) 23 M.L.J. 487 One of several cases on whether a regular suit lies to recover purchase money when sale proves futile; decisions conflicted. The opinion reviews it as part of conflicted authority; the Court questioned parts of its reasoning though accepted some conclusions in related cases.
Tirumalasami Naidu v. Subramaniam Chettiar (1916) I.L.R. 40 Mad. 1009 Held a suit was maintainable where the old Code remained in force though suit brought under new Code. Noted as one of the decisions favoring maintainability of suit; Court critiques the reasoning but accepts the conclusion.
Makar Ali v. Sarfuddin (1922) I.L.R. 50 Cal. 115 Similar position to other cases that held suit was maintainable under certain transitional circumstances. Noted as supportive of the view that a suit can lie; Court treats these decisions as part of an inconsistent body of authority.
Parvathi Ammal v. Govindasami Pillai (1915) I.L.R. 39 Mad. 803 : 29 M.L.J. 467 Sale set aside for material irregularity; purchase money returned but not poundage; held a regular suit lies to recover poundage fee. Cited as an authoritative Madras case under the present Code supporting the view that a suit lies to recover sums like poundage; Court regards it in favour of maintainability of suit.
Subbu Reddy v. Ponnambala Reddi (1918) M.W.N. 655 Held that no regular suit lay to recover purchase money. Noted as part of conflicting authority; mentioned as following one judicial view against maintainability of regular suit.
Muthukumarasami Pillai v. Muthuswami Thevan (1926) 52 M.L.J. 148 Related to petition under Order 21, Rule 91 filed beyond limitation period; facts distinguished from present case. Described as having no bearing on the present discussion because of different facts (limitation issue).
Juranu Mohamad v. Jathi Mahamad (1917) 22 C.W.N. 760 Held that a suit does not lie. Noted as authority against maintainability; Court records that an opposite conclusion was reached in another decision in the same Court.
Prasanna v. Ibrahim (1917) 36 C.L.J. 205 Arrived at the opposite conclusion (that a suit lies). Noted as conflicting authority within the same court system.
Rishikesh Laha v. Manik Molla (1916) I.L.R. 39 All. 114 Held that a regular suit lies only where circumstances like fraud exist. Cited as one of the authorities requiring special circumstances (fraud) to sustain a regular suit for refund.
Nannulal v. Bhagwan Das (1916) I.L.R. 39 All. 114 Held that a suit does not lie. Recorded as part of the conflicting decisions; supports the position that no warranty exists as to title in Court sales.
Bindeshri Prasad Tiwari v. Badal Singh (1923) I.L.R. 45 All. 369 (F.B.) Full Bench held auction-purchaser can obtain refund under Section 47, Civil Procedure Code, i.e., in execution, by an application other than one under Order 21, Rule 93. The Court observed this decision must be confined to its special facts and distinguished in later cases; it did not accept it as broadly applicable to the present fact-situation.
Deputy Shankar v. Mangal Sen (1932) I.L.R. 54 All. 114 Distinguished Bindeshri Prasad Tiwari and held that a regular suit does not lie, reasoning based on absence of warranty. The opinion records disagreement with this decision's conclusion that a regular suit does not lie solely because there is no warranty in a Court sale.
Amba Lal v. Ramgopal Madhoprasad (1932) I.L.R. 55 All. 221 Case where the decree was varied; not directly relevant to the present facts. Stated to afford no guide to the present facts and therefore not followed.
Balvant Raghunath v. Bala (1922) I.L.R. 46 Bom. 833 Held that fraud or misrepresentation must be necessary to sustain a claim for refund in a regular suit (similar to Rishikesh Laha). Cited as an authority adopting a restrictive view requiring fraud or misrepresentation.
Ram Tuhul Singh v. Biseswar Lall Sahoo (1875) L.R. 2 I.A. 131 (P.C.) Auction-purchaser tried to recover from judgment-debtor (not the person who received payment); held connection too remote to sustain action for money had and received. Described as having no bearing on present matter because of differing legal relationships and facts.
Nagendra Nath Ghosh v. Sambhu Nath Pandey (1924) I.L.R. 3 Pat. 947 Held that no regular suit lies; main ground being absence of warranty. Cited among authorities that denied maintainability of a regular suit on ground of no warranty.
Maung Naung v. Maung Ba Gyi (1928) I.L.R. 6 Rang. 468 Held that no regular suit lies; reasoning centered on absence of warranty. Included among decisions against maintainability of a regular suit.
Mehr Chand v. Milkhi Ram (1932) I.L.R. 13 Lah. 618 (F.B.) Reviewed whole case-law and held that an action for refund (money had and received) is maintainable; recognized implied warranty that judgment-debtor has at least some little title. The Full Bench's reasoning is expressly approved by the present Court; the present Court agrees there is an implied limited warranty in Court sales and that an action for refund is maintainable.

Court's Reasoning and Analysis

The Full Bench undertook a step-by-step legal analysis grounded in the facts of the case and the Code's textual and historical context:

  1. Preliminary principle: The Court observed that the Civil Procedure Code is a code of adjective (procedural) law and cannot create substantive rights; it may, however, recognise or take away remedies. Therefore the question whether a purchaser has a right to recover purchase money must be answered by reference to substantive rights and to the Code's recognition of such rights.
  2. Substantive unfairness: The Court explained that, as a matter of general law and conscience, where a purchaser buys the property at a Court-ordered sale bona fide believing the judgment-debtor had title, but later it turns out the judgment-debtor had no saleable interest, it would be unconscionable for the decree-holder to retain purchase money. This suggests a right of action in money had and received under general law.
  3. Historical and statutory development: The Court reviewed older decisions (including those under earlier Acts) and legislative changes. It pointed out that earlier case-law (e.g., Sowdaminee Chowdrain and Dorab Ally Khan) did not lead the Legislature to follow the view that no refund right exists. Instead, Section 315 of the Code of 1882 included language ("the purchaser shall be entitled to receive back his purchase money from any person to whom the purchase money has been paid") that recognises the purchaser's right to a refund if there is no saleable interest.
  4. Consequence of statutory recognition: Because the Code (in the form of Section 315 of 1882) recognised the purchaser's right, the Court reasoned that a regular suit lies to enforce that right as a corollary of the recognised right. The Code's recognition does not create the substantive right but recognises it and provides, in certain editions, a remedy in execution as well.
  5. Effect of the present Code (post-1908): The Court observed that when the present Civil Procedure Code was enacted the Legislature limited execution remedies: execution-based refund remedies were confined to cases where the sale was set aside by the executing Court under Order 21, Rules 89–92/93 (i.e., applications in execution). Where the executing Court does not set aside the sale but the sale later proves futile on the finding of another Court in different litigation (that judgment-debtor had no saleable interest), Order 21, Rule 93 cannot apply.
  6. Remedy where sale is set aside in other litigation: In such cases (sale found to be futile by another suit), the Court concluded the auction-purchaser's remedy is a regular suit to recover the purchase money, not an application in execution under Order 21, Rule 93. The Court noted there may be defenses in that suit (for example, that the case was not properly conducted, or that the other Court's finding is not binding).
  7. Review of authorities and conclusion: The Bench reviewed conflicting authorities from different High Courts and Full Benches. After weighing them, the Court expressly agreed with Mehr Chand v. Milkhi Ram (Lahore Full Bench) that recognised an implied limited warranty in Court sales (that there is some little title in the judgment-debtor) and that an action for money had and received is maintainable. It found earlier cases which denied a suit either distinguishable on facts or wrongly reasoned.
  8. Answers returned to the referred questions: On this basis, the Court answered Question No. 1 (right to refund by suit) in the affirmative and Question No. 2 (right to obtain refund by way of an execution application) in the negative.
  9. Procedural disposition where petition could be treated as a suit: The Bench noted that even in the original application a request was made to treat the petition as a suit; the Court saw no objection to treating it as a suit but directed the respondent to pay court-fee as for a suit, fixed on the amount claimed, giving one month's time to do so. The Division Bench was to deal with any separate argument that the execution application should be regarded as a regular suit.

Holding and Implications

Holding:

The Full Bench's answers to the referred questions are summarized as follows:

  • Question No. 1: Answered in the affirmative — the auction-purchaser is entitled to a refund of the purchase money by way of a regular suit where the sale proves futile because the judgment-debtor had no saleable interest.
  • Question No. 2: Answered in the negative — the auction-purchaser is not entitled to obtain the refund by way of an application in execution (Order 21, Rule 93) where the sale is rendered futile by the finding in another suit; the remedy in that situation is a regular suit.

Direct consequences and orders in this case:

  • The Court allowed the petition to be treated as a suit (subject to payment of court-fee as for a suit on the amount claimed) and granted one month's time to pay the court-fee in the Court of First Instance.
  • The Full Bench declared that the respondent is entitled to the relief granted by the lower Appellate Court. The Civil Miscellaneous Second Appeal is dismissed with costs.
  • The lower Appellate Court's decree will be treated as a decree passed in a suit, and the respondent is entitled to add to his costs the extra court-fee he had to pay in accordance with the Bench's direction.

Broader implications:

The opinion applies existing statutory interpretation and case-law to clarify the appropriate remedy: recognition that a purchaser has a right to recover purchase money where there is no saleable interest and that when the sale is rendered futile by another Court's finding the remedy is a regular suit rather than an application in execution. The opinion does not purport to lay down a novel rule beyond this application of established statutory language and precedents; its primary effect is to resolve the questions posed on the facts before the Bench and to direct the treatment of the respondent's claim in this litigation.

Disposition (Case Outcome)

The Civil Miscellaneous Second Appeal was dismissed with costs. The District Appellate Court's decree (ordering refund except for poundage fee) is affirmed and will be treated as a decree passed in a suit; the respondent may add the extra court-fee he paid to his costs pursuant to the Bench's directions.

Prepared strictly on the basis of the provided opinion text; no information has been added or inferred beyond what appears in the opinion.

Show full summary ...

    V. Macha Koundan v. V.K Kottora Koundan .

    1. The facts out of which this Civil Miscellaneous Second Appeal arises are these. One T.K. Nambiar mortgaged a property to the appellant's father. The mortgagee sued for the mortgage money and obtained a decree for sale. The appellant as his legal representative executed the decree and in the sale that followed, the property was purchased by the respondent for Rs. 825. Meanwhile the junior members of T.K. Nambiar's tarwad sued for a declaration that the mortgage decree and sale were not binding on them and for possession. They obtained a decree and in execution got possession of the property. Thus the respondent was deprived of the possession of the property which he had purchased and he filed an application under Sections 47, 147 and 151, Civil Procedure Code for a refund of the purchase money. The District Munsif ordered the refund. On appeal, the District Judge deducted only the poundage fee and otherwise confirmed the District Munsif's order. The appellant, that is the legal representative of the decree-holder in the mortgage suit, has filed this appeal. He contends that the respondent is not entitled to a refund at all even by way of a regular suit; but his chief contention is that the respondent is not entitled to obtain a refund by way of an application in execution. Accordingly these two questions have been referred to the Full Bench in the order I have stated.

    2. Taking the first question, namely, whether the respondent is entitled to a refund at all even by way of a suit, the question depends upon the rights of the parties as they flow out of the circumstances of the case and not upon whether a provision for such a suit is made in the Civil Procedure Code. The Civil Procedure Code is a Code of adjective law and cannot create rights of action though it may recognise them or take them away. Forgetting for a moment all technicalities and the Codes of Procedure, one would think on the facts that the auction-purchaser should have a right of action for money-had and received. The facts are that a decree-holder brings a certain property to sale bona fide believing it to belong to his judgment-debtor. The Court also under the same belief orders the sale of property. The auction-purchaser also under the same bona fide belief purchases it. Afterwards it turns out that the property does not belong to the judgment-debtor at all. Thus the auction-purchaser purchases nothing though he paid consideration for it under a mistake. The decree-holder gets a certain amount without really having brought any of the properties of the judgment-debtor to sale that is, under a similar mistake. Under the circumstances it is unconscionable that the decree-holder should retain the benefit of the money so obtained and the auction-purchaser should lose it and one would think that the auction purchaser would have a right of action for money had and received under the general law and not under any Code of Procedure.

    3. Mr. Ramakrishna Aiyar, the learned Advocate for the appellant, refers to a decision in Sowdaminee Chowdrain v. Kishen Kishore Poddar (1869) 12 W.R. 8 (F.B.). This decision was passed under Act VIII of 1859 but the general right was discussed and it was negatived on the ground that there was no warranty by the Court or by the decree-holder.

    4. In Dorab Ally Khan v. Abdool Azeez (1878) L.R. 5 I.A. 116 : I.L.R. 3 Cal. 806 (P.C.) the plaintiff sued for refund of the purchase money on the ground of failure of consideration. Under a writ of fieri facias issued to the Sheriff of Calcutta, he seized property without jurisdiction and conveyed it to the plaintiff's predecessor-in-title, who was afterwards deprived of his possession. There was a conveyance by the Sheriff and the whole discussion before the Courts turned upon the covenants in the conveyance. But on the ground that the Sheriff had no jurisdiction to sell property in Oudh, the High Court's judgment was set aside by the Privy Council and the suit was remanded for trial on the merits. I do not think this case can help the appellant. It was not a case of sale under the Civil Procedure Code by the Court. Whatever might be the theory of law in the minds of the framers of the Code of 1859, it is now clear that the Legislature were unwilling to adopt the view of the law laid down in Sowdaminee Chowdhrain v. Kishen Kishore Poddar (1869) 12 W.R. 8 (F.B.) and Dorab Ally Khan v. Abdool Azeez (1878) L.R. 5 I.A. 116 : I.L.R. 3 Cal 806 (P.C.) and they procedeed to frame the language of the corresponding section in the Codes of 1877 and 1882 (Section 315) on a different theory. Section 315 contained a clause

    "the purchaser shall be entitled to receive back his purchase money from any person to whom the purchase money has been paid"
    . It is clear that this clause recognises the right of auction-purchaser to obtain a refund of his purchase money if there is no saleable interest though there is no warranty of title. What is meant is that though in a Court sale there is not such a warranty as to the extent of title as we find in a private transaction between a vendor and a purchaser, still the Code adopts the view that there is a limited kind of warranty, namely, that the judgment-debtor possesses some little interest however small it may be. If the judgment-debtor's interest turns out to be nothing, the Court practically makes a promise that the decree-holder will have a refund of his purchase money. This is the theory underlying Section 315 of the Code of 1882. If once such a right in the purchaser is recognised, on the principle that every right should be capable of being enforced by a suit, a regular suit lies to obtain a refund of the purchase money but the legislature proceeded to give a remedy in execution also under Section 315. Accordingly under the Code of 1882 Courts have held that in a case where the judgment-debtor has no saleable interest, the auction-purchaser can obtain a refund of his purchase money under Section 315 or by a regular suit. Where it is sought to be obtained by a suit, it is improper to describe it as a suit under Section 315, Civil Procedure Code. As already observed the right to obtain a refund being recognised by the Code, the remedy by way of suit exists not because the Code gave it but because every right can be enforced by a suit. When the present Civil Procedure Code was passed, the Legislature limited the right of the auction-purchaser to obtain a refund in execution to cases where the sale was set aside by the executing Court under Order 21, Rule 92, that is, where an application is made under Rules 89, 90 or 91. But in cases where the executing Court does not set aside the sale, but the sale turns out to be futile by the finding in another litigation that the judgment-debtor has no saleable interest, this provision, namely Order 21, Rule 93, cannot apply.

    5. The question that now arises is whether the auction-purchaser can recover the purchase money at least by a regular suit. It follows from the observations already made that such a suit exists unless it is taken away by an express provision of law. The object of the Code is to provide a speedier remedy in execution under certain special circumstances. The right of suit under other circumstances remains under the general law.

    6. When we look at the decisions, it is true that there is some conflict of authority. In Mohideen Imbrahim v. Mahomed Mura Levai (1912) 23 M.L.J. 487, Tirumalasami Naidu v. Subramaniam Chettiar (1916) I.L.R. 40 Mad. 1009 and Makar Ali v. Sarfuddin (1922) I.L.R. 50 Cal. 115 the right of suit accrued when ' the old Code remained in force though the suit was brought under the new Code. Accordingly in the second and third cases it was held that the suit was maintainable. In the first case the learned Judges differed. Though the conclusion of Ayling, J., in the first case and the conclusions in the other two cases are correct, I venture to think that the reasoning by which they were arrived at is not sound. The learned Judges who held that the suit was maintainable thought that the right was given by the Code of 1882 and taken away by the Code of 1908. The Code of 1882 did not create the right of suit nor was it taken away by the Code of 1908. The remedy by way of suit exists as a corollary to the recognition of the right to obtain a refund.

    7. In Parvathi Ammal v. Govindasami Pillai (1915) I.L.R. 39 Mad. 803 : 29 M.L.J. 467 the sale was set aside on account of a material irregularity and the purchase money was returned to the auction-purchaser but not the poundage. It was held that a regular suit lies to recover the poundage fee, though all the facts occurred under the present Code.

    8. In Subbu Reddy v. Ponnambala Reddi (1918) M.W.N. 655 it was held that no regular suit lay. The learned Judges followed Napier, J's view in Mohideen Imbrahim v. Mahomed Mura Levai (1912) 23 M.L.J. 487.

    9. The decision in Muthukumarasami Pillai v. Muthuswami Thevan (1926) 52 M.L.J. 148 has no bearing on the present discussion. There the auction-purchaser filed a petition under Order 21, Rule 91, but beyond the thirty days provided by the Limitation Act.

    10. Thus the only Madras case reported in the authorised reports in which all the facts happened under the present Code, namely, Parvathi Ammal v. Govindasami Pillai (1915) I.L.R. 39 Mad. 803 : 29 M.L.J. 467 is in favour of the view that a suit lies, though in that case the sale was set aside in execution.

    11. In Juranu Mohamad v. Jathi Mahamad (1917) 22 C.W.N. 760 it was held that a suit does not lie. But the opposite conclusion was arrived at in the same Court in Prasanna v. Ibrahim (1917) 36 C.L.J. 205.

    12. In Rishikesh Laha v. Manik Molla (1916) I.L.R. 39 All. 114 it was held that a regular suit lies if there are circumstances like fraud but not otherwise.

    13. In Nannulal v. Bhagwan Das (1916) I.L.R. 39 All. 114 it was held that a suit does not lie.

    14. In Bindeshri Prasad Tiwari v. Badal Singh (1923) I.L.R. 45 All. 369 (F.B.) Full Bench held that an auction-purchaser can obtain a refund of the purchase money under Section 47, Civil Procedure Code, that is, in execution though it is by an application other than one under Order 21, Rule 93. This case has been distinguished in Deputy Shankar v. Mangal Sen (1932) I.L.R. 54 All. 114 on the ground that in the facts of that case the decree in execution of which the sale was held was itself set aside in another suit. It may be on account of this distinction that the decision in Bindeshri Prasad Tiwari v. Badal Singh (1923) I.L.R. 45 All. 369 (F.B.) must be confined to the special facts of the case. But I do not agree with the decision in Deputy Shanker v. Mangal Sen (1932) I.L.R. 54 All. 948, holding that a regular suit does not lie, the only ground for the decision being that there is no warranty in a Court sale.

    15. Amba Lal v. Ramgopal Madhoprasad (1932) I.L.R. 55 All. 221 is also a case where the decree was varied and it affords no guide to us in facts like the present.

    16. The decision in Balvant Raghunath v. Bala (1922) I.L.R. 46 Bom. 833 is like the decision in Rishikesh Laha v. Manik Molla (1926) I.L.R. 53 Cal. 758 the learned Judges holding that fraud or misrepresentation must be necessary to sustain a claim for refund in a regular suit.

    17. In Ram Tuhul Singh v. Biseswar Lall Sahoo (1875) L.R. 2 I.A. 131 (P.C.) the auction purchaser sought to obtain a refund not from the person who obtained the payment but from the judgment-debtor on the ground that he had the benefit of the payment to the decree-holder. It was held that the connection of the judgment-debtor with the matter is too remote and speculative to sustain an action for money had and received. That decision has again no bearing on the matter before us.

    18. In Nagendra Nath Ghosh v. Sambhu Nath Pandey (1924) I.L.R. 3 Pat. 947 and Maung Naung v. Maung Ba Gyi (1928) I.L.R. 6 Rang. 468 it was held that no regular suit lies, the main ground being that there is no warranty.

    19. The whole case-law has been reviewed by the Lahore High Court in Mehr Chand v. Milkhi Ram (1932) I.L.R. 13 Lah. 618 (F.B.), where it was held that an action for a refund of money had and received is maintainable. According to this decision there is an implied warranty in Court sales to the extent that there is some little title in the judgment-debtor and it is not a case of no title at all though it is still true that there is no warranty of the kind in private purchase as to the extent of the title conveyed. I agree with this decision.

    20. The result is in a case where the sale is set aside in execution by an application under Rules. 89, 90 or 91, the auction-purchaser can obtain a refund on an application under Order 21, Rule 93, Civil Procedure Code. But where the sale turns out to be futile by a finding in another suit the only remedy that the party has is a regular suit and not an application under Order 21, Rule 93. There may be defences in that suit, for example, that the case was not properly conducted and that the finding-is not binding.

    21. I accordingly answer question No. 1 in the affirmative and question No. 2 in the negative.

    22. The respondent tried to argue before us that the present execution application may be regarded as a regular suit. This is not a matter referred to us and the Division Bench must deal with such an argument.

    Horace Owen Compton Beasley, Kt., C.J.

    23. I agree.

    King, J.

    24. I agree.

    ORDER

    25. Even in the original application a request was made to treat the petition as a suit. We see no objection to this being done, but it will be necessary that Court-fee be paid as for a suit, the same being fixed on the amount claimed in the application in the first Court. We allow one month's time for the present respondent to pay the court-fee payable in the Court of First Instance.

    JUDGMENT

    26. The necessary court-fee has been paid in accordance with the above direction. According to the opinion of the Full Bench the Respondent is entitled to the relief given to him by the Lower Appellate Court. The Civil Miscellaneous Second Appeal is therefore dismissed with costs. The lower Appellate Court's decree will be treated as a decree passed in a suit and the respondent will be entitled to add to his costs the extra court-fee he had to pay in accordance with our order of the 11th February, 1935.

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    V. Macha Koundan v. V.K Kottora Koundan .
    (Aug 1, 1935)