SHRINIVAS KRISHNARAO KANGO Vs. NARAYAN DEVJI KANGO

JUDGEMENT

(1.) This execution Second Appeal arises out of an order passed by the Civil Judge, Senior Division, Bijapur, in Special Darakhast No. 36 of 1958 in which the appellant sued out execution of the decree passed in Civil Appeal No. 164 of 1952 on the file of the Supreme Court.

(2.) The facts of the case are briefly these: The appellant instituted a suit for partition and separate possession of certain items of property against the respondents on the basis that he had been adopted to one Krishnarao by his widow Rukminibai. He filed the suit in forma pauperis. The main contention of the defendants in that suit was one relating to the factum and validity of adoption and the effect of the said adoption on the family properties. The said suit was decreed by the trial Court which inter alia ordered that the plaintiff was entitled to a half share "in the open site occupied by the front house covering C. T. S. Nos. 639 and 640" and that he was entitled to recover half price of the said open site from defendants 1 to 5 after getting its valuation assessed in execution proceedings. The trial court however ordered that the plaintiff should get half of the price of the above properties prevailing on the date of adoption. Aggrieved by the decree of the learned Civil Judge, both the plain-tiff and defendants took up the matter in appeal before the High Court of Bombay which modified the decree of the trial Court directing that the plaintiff should get a half portion of certain properties and half price of the open site occupied by the front house covering C. T. S. Nos. 639 and 640, after deleting that part of the decree of the trial Court which directed that the plaintiff was entitled to get the same. The matter was taken up in appeal, before the Supreme Court in Civil Appeal No. 164 of 1952. The relevant part of the decree passed by the Supreme Court on appeal reads as follows:--

(3.) In the execution application, out of which this appeal arises, as already stated above, the appellant who was the plaintiff in that suit prayed for the recovery of half the value of sites Nos. 634. 635, 639, 640, 641. 642, 644 and 645 as on the date of the suit. In the course of the execution application, an advocate of Bijapur Bar, Shri M. M. Sughandhi was appointed as Commissioner to make a valuation of the properties in question on the date of the suit and to report to the court. The Commissioner reported to the court that the sites in question were worth Rupees 17,094/- as on the date of the suit. The judgment-debtors filed objections to the commissioner's report regarding the valuation. The court before which the execution petition was pending came to the conclusion after overruling the objections of the judgment-debtors that the valuation made by the commissioner was proper and just. It however was of the opinion that the appellant was not entitled to get anything more than half of the market value of the above sites which he had furnished as the market value of the above sites in the plaint by which he commenced the suit, and therefore, even though it came to the conclusion that actually the sites in question were worth Rs. 17,094/- on the date of the suit on the basis of the report of the commissioner, it ordered that the judgment debtors should pay the decree holder Rs. 2,000/- only which was half of the market value of these sites furnished in the plaint. Aggrieved by the order of the executing court, the decree-holder preferred an appeal before this Court. That appeal having been transferred by the High Court to the file of the District Judge, Bijapur, in view of the provisions of the Mysore Civil Courts Act, the District Judge of Eijapur heard the appeal. He came to the conclusion that the decree-holder (the appellant before me) was estopped from contending that the market value of the sites in question was anything more than what he had actually stated in his plaint when the suit was instituted. The District Judge however found that the valuation made by the Commissioner, namely that the sites in question were worth only Rs. 17,094/- on the date of the suit, was correct. In view of his finding on the question of estoppel raised by the judgment-debtors he rejected the appeal. The decree holder has filed this appeal against the order passed by the District Judge.