Minor Sivaraman And Ors. vs P.M. Shanmughasundara Mudaliar And ... on 30 August, 1967
In Kaleswar Mills Ltd. v Govindaswami (1945) 2 M.L.J. 403 : I.L.R. (1946) Mad.
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The Kaleswarar Mills, Ltd. By Agent, ... vs A.P. Govindaswami Naicker And Ors. on 22 August, 1945
P. Karuppannan And Anr. vs Sadaya Maistry And Ors. on 31 July, 1959
In Kaleswara Mills, Ltd. v. Govindaswami Naicker (1945) 2 M.L.J. 403 it was held that a suit under Order 21, Rule 103, was not one for mere determination of the question of possession of the parties concerned, but the establishment of the right or title by which the plaintiff claimed to the present possession of the property. It cannot, therefore, be said that the subject-matter of the suits are the summary orders themselves ; it would be more appropriate to state that the subject-matter of the suit was the title to the property which was the subject-matter of the claim, obstruction or re-delivery proceedings, as the adjudication of title to that property would be involved in the suits. According to the Concise Oxford Dictionary, the word ' subject' means 'theme, discussion or representation or matter to be treated or dealt with.' Therefore, the subject-matter of a suit would mean a matter to be treated or dealt with in the suit. It cannot be disputed that the main matter to be dealt with in the suit (be it under Order 21, Rule 63 or Order 21, Rule 103) is title to the property which was the subject of the claim or obstruction proceedings. It would follow that the subject-matter of such suits would be the property and not the order.
Minor Sivaraman And Anr. vs P.M. Shanmughasundara Mudaliar And ... on 30 August, 1967
In Kaleswar Mills Ltd. v. Govindaswami, ILR 1946 Mad 536=(AIR 1946 Mad 76) the decision in Akkammal v. Komaraswamv Chetty, (1942) 2 Mad LJ 315= (AIR 1943 Mad 36) affirmed later in the above Full Bench was followed and it was held that the claim in that suit was barred as against the obstructors by reason of the provisions of Order XXI, Rule 103.
P. Karuppannan And Anr. vs Sadaya Maistry And Ors. on 31 July, 1959
(5) In Kaleswara Mills Ltd., v. Govindasami Naicker, 1945-2 Mad L. J. 403: (AIR 1946 Mad 76), it was held that a suit under O. 21, R. 103 was not one for mere determination of the question of possession of the parties concerned, but the establishment of the right or title by which the plaintiff claimed to the present possession of the property. It cannot, therefore, be said that the subject matter of the suits are the summary orders themselves; it would be more appropriate to state that the subject matter of the suit was the title to the property which was the subject matter of the claim, obstruction or redelivery proceedings, as the adjudication of title to that property would be involved in the suits.
Kovvuru Lakshmipathiraju And Ors. vs Jagani Venkataswami And Ors. on 9 November, 1945
4. The difference between the expression " May institute a suit to establish the right which he claims to the property in dispute," and the expression " May institute a suit to establish the right which he claims to the present possession of the property" is, I think, immaterial. As has been held by this Court the order in the execution department will be conclusive as regards the title of the parties if no suit is filed within one year. So far as the execution department is concerned enquiry is no doubt confined to the question whether the person objecting to delivery or claiming re-delivery in one case or objecting to the attachment in the other case was in possession in his own right and not on behalf of the judgment-debtor. But once an order is made against a particular party, be he the decree-holder or the objector, the suit should be filed by the unsuccessful party and if not, the right which he claims to the property will be lost. It is enough in this connection to refer to a recent decision of the Chief Justice and Rajamannar, J., in Kaleswarar Mills, Ld. v. Govindaswami Naicker (1945) 2 M.L.J. 403. Rajamannar, J., who delivered the judgment has gone through the question at length and after referring to the earlier decisions of this Court and of the other Courts, has pointed out that if the title which is put forward as the basis of the suit is the same as the title which is put forward in the execution proceedings as the basis for an order in his favour, then Rule 103 will be a bar but not otherwise.
Narayanaswami Reddi And Ors. vs Al. Vr. St. Veerappa Chettiar And Anr. on 23 February, 1949
Another decision Kaleswar Mills v. Govindaswami Naicker (1945) 2 M.L.J. 403, is relied on, but there was in that case a clear order of dismissal of the application for removal of the obstruction on the ground that the obstructors were entitled to do so in their own right and were not in possession on behalf of the judgment-debtors.
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