ANNAPURANA BAI Vs. F M GANESH DATTATRAYA

JUDGEMENT

(1.) This appeal is by the First Judgment debtor in Darkhast No. 146 of 1963 on the file of the Court of the Munsiff at Kumta. It is directed against the judgment made by the Civil Judge at Karwar, in C. A. No. 129 of 1966. That was an appeal directed against an order made by the Munsiff, Kumta, in the aforesaid Dharkhast, directing recovery of the balance due under a decree made in O. S. No. 366 of 1957.

(2.) It would appear that by virtue of an annuity agreement, wherein the appellant first judgment-debtor had agreed to Day certain sums of money, such payment being secured by the creation of a charge on several properties enumerated therein. In enforcement of that agreement, decrees were obtained against the first judgment debtor, as and when the annuity agreed became due end payable. The first of such decree was made in O. S. No. 216/ 54. The said decree was executed in Darkhast No. 312 of 56. whereby only a portion of the properties charged were brought to sale and purchased by the Decree-holder himself. The present Darkhast arises from a similar decree obtained in O. S. No. 366/57. There is no doubt some controversy as regards the latter question. I however, do not propose to resolve this controversy whether the present Darkhast related to the decree made in the earlier suit or the later suit. I shall assume for the purpose of this appeal that it is either under one or the other.

(3.) One of the contentions taken in the Darkhast No. 146/63 is that having regard to the fact that some of the properties were sold in execution of the decree and purchased by the Decree holder himself the debt was completely extinguished and nothing more remained for recovery under the first decree or the second decree. The Courts below came to the conclusion that in view of the fact that the liability under the annuity agreement was a recurring one, it was open for the Decree-holder to sue for the debt on the basis of the personal decree or execute the decree against the properties which have been left unsold, but were subject to the charge pursuant to such an agreement, Aggrieved by this Order, the first Judgment-Debtor appeals.