Varadappa Chettiar vs Srimathi Vasundra Devi

Rajamannar, C.J.—This is an application by the defendant the judgment-debtor in C. S. No. 35 of 1949 on the file of the Original Side of

this Court. For stay of further proceedings in execution of the decree passed therein pending an appeal against the said decree (O. S. A. No. 69 of

1953). The application purports to be made under the provisions of Madras Act V of 1954. That Act received the assent of the President on the

5th February, 1954. It repeated an Ordinance containing practically the same provisions, namely, Madras Ordinance V of 1953, which had come

into force in Discern bar 1953. S. 3 of the Act provides that:

No suit for the recovery of a debt shall be instituted, no application for the execution of a decree for payment of money passed in a suit for the

recovery of a debt shall be made against any agriculturist in any civil or revenue Court before the expiry of a year from the date of commencement

of this Act.

The application is opposed on the ground that the Act does not apply to the facts of this case and on the further ground that even assuming the

petitioner was entitled to relief under the Act or the Ordinance, he must be deemed to have waived his right by reason of the fact that he applied to

this Court in C. M. P. No. 191 of 1954 on 4th January, 1954, for extension of time for furnishing security.

Taking the second point first, we do not think that there has been any conduct on the part of the petitioner to compel us to hold that he had

waived the rights under the Ordinance or the Act. There is nothing on record to show that at the time the petitioner filed his application C. M. P.

No. 191 of 1954, he was aware of the Ordinance and of his rights under the Ordinance to obtain a stay of the execution of the decree. Without

satisfactory proof of knowledge on the part of the petitioner, we do not think it fair or proper to hold that he had waived a right which he had

under the Ordinance or under the Act.

The only question, therefore, is whether the decree, the execution of which is now sought to be stayed is a decree for payment of money passed

in a suit for the recovery of a debt. Debt is defined as follows:

Debt means any sum of money which a person is liable to pay under a contract (express or implied) for consideration received and includes rent in

cash or kind which a person is liable to pay or deliver in respect of the lawful use and occupation of land.

It is unnecessary to refer to the Explanation. There are several exceptions to this definition one of which is that a ""debt does not include any

liability arising out of a breach of trust.

The suit was instituted against the petitioner for return of a sum of Rs. 1, 01,000 alleged to have been deposited by the respondent with the

petitioner on or about 27th July. 1946. The defiance of the appellant petitioner was that the entire amount had been paid out by him to her husband

and another relation of hers and that she had had the benefit of the entire amount and otherwise also authorized and ratified such pay. Mints The

learned judge who tried the suit passed a decree directing the appellant to pay the respondent a sum of Rs. 36,565-10-0 and dismissed the suit for

the balance. The basis of this decree was the finding of the learned Judge that the total sum of Rs. 64,435.6-0 was paid to the respondent''s

husband and the appellant was entitled to a discharge in respect of such payment.

Undoubtedly the appellant was under a liability to pay money to the respondent; but was this liability under a contract. Express or implied, for

consideration received? As there can be no contract in law without consideration of some kind or other, the words ""for consideration received

apparently do not relate to the contract as such, to support which some consideration or other is necessary, but they refer to the liability to pay a

sum of money. The liability must be for consideration received no doubt under a contract. In this case we find it difficult to say that the appellant''s

liability to pay the amounts kept with him by the respondent is a liability to pay for consideration received. The money belonged to the plaintiff and

it is common ground that the appellant was not entitled to utilize the amount for his own use. If anybody had the benefit, it was the plaintiff at whose

request the appellant consented to keep the money, Mr. Gopalratnam, learned Counsel for the petitioner, cited passages from Anson on Contract

and two English decisions Hart v. Miles 140 E.R. 1128., and Bainbridge v. Firestone 112 E.R. 1009. And also a passage from Hapsburg''s Laws

of England, Vol. 7. paragraph 805. We have not been able to derive any Assistance from any of these references. The question in this case is not

whether there is anything in this case to support a contract of bailment. It was laid down in the cases referred to that any detriment suffered by the

plaintiff or any benefit derived by the defendant would be sufficient consideration for a contract of bailment. For one thing, we are not convinced

that there is strictly speaking even any contract under which the appellant was liable to pay back the money kept with him. If there is a detriment

suffered, it was only suffered by the appellant. The receipt evidencing the deposit says that the appellant agreed to keep the money in deposit at the

request of the respondent. Learned Counsel for the appellant was not able to say in what way the respondent suffered any detriment in keeping the

money with the appellant. Be that as it may, we think that this application must fail on the ground that the liability of the appellant to pay the money

for which a decree had been passed is not for consideration received by him. The money always belonged to the plaintiff-respondent and the

appellant had never any manner of interest in it. What he has been asked to do is to pay the money to the respondent. It is impossible to say that

this amount represents a consideration received by the appellant. We therefore hold that the petitioner is not entitled to any relief under Madras

Act V of 1954. The petition is therefore dismissed. No. Costs.