Madras High Court
Kristnam Sooraya And Anr. vs Pathma Bee And Anr. on 9 November, 1905
Equivalent citations: (1906)ILR 29MAD151
JUDGMENT
1. On the facts stated by the District Judge we are of opinion that the suit is sustainable. We are unable to accept the view taken by the learned Judges in the case Kunhiamma v. Kunhunni I.L.R. 16 Mad. 140.
2. In our opinion the proviso to Section 42 of the Specific Relief Act does not operate so as to take away from a party against whom an order has been made under Sections 280, 281 or 282 of the Code of Civil Procedure, the special right conferred by Section 28-3 to sue for a declaration of his title in so far as it is affected by the order which he seeks to impeach.
3. We think the law on this question was correctly laid down by Muttusami Iyer, J., in his judgment in Ambu v. Ketlilamma I.L.R. 14 Mad. 23 at p. 25.
JUDGMENT
4. We cannot accede to the argument now urged before us that there was no order under Section 282 of the Code of Civil Procedure against the appellant, and therefore no basis for a declaratory suit under Section 283 of the Code of Civil Procedure. In accordance With the decision of the Full Bench we set aside the decree of the lower Appellate Court and remand the appeal for disposal on the merits. Courts will abide and follow the result.