PAKIRA BHANDARY Vs. DEVU BHANDARY

JUDGEMENT

(1.) This Second Appeal arises out of execution proceedings. The short question that is raised by the appellants is, whether the respondent is entitled to execute the decree. It arises in this way: The decree sought to be executed was obtained by one Mundi Hengsu, since deceased, in O.S. No. 367 of 1947 as Yejamanthi of Aliyasanthana family of which the appellants and respondent were members; that decree was for possession and mesne profits to be realised from the present judgment-debtors; thereafter, there was a partition suit among the members of the Aliyasanthana family and a final decree for partition came to be passed on 14-9-1954; the present respondent claiming as heir to one Manku Bhandary, since deceased sought to execute the decree obtained in O.S. No. 367 of 1947 and realise the decretal amount from the judgment-debtors. The judgment-debtors objected to the maintainability of this execution petition. It was contended by them that the decree sought to be executed was not an executable decree since the said decree was merged in the partition decree amongst the members of their family and that it was only the partition decree that could be executed and not the decree obtained in O.S. No. 367 of 1947. This contention of the judgment-debtors found favour with the executing Court. It held that the decree sought to be executed is not executable since it is merged in the partition decree and that it is the partition decree and that it is the partition decree which alone is capable of execution. In that view of the matter, it dismissed the execution petition. In appeal, that learned appellate Judge did not agree with the conclusion reached by the trial Court. He held that the petition seeking to execute the decree is O.S. No. 367 of 1947 is maintainable; he therefore reversed the decree of the trial Court and directed the execution to proceed in accordance with law. It is the correctness of this Order that is being challenged by the judgment--debtors in this appeal.

(2.) Mr. Karanth, appearing for the appellants submitted in support of the appeal. They are (1) that the decree obtained in O.S. No. 367 of 1947 having merged in the final decree in the partition suit is not capable of execution: (2) the respondent is neither an assignee in writing nor a transferee by operation of law within the meaning of Order XXI, Rule 16 of the Code of Civil Procedure and therefore he is not entitled to execute the decree; (3) the respondent is not a legal representative of the degree-holder; and (4) the order of remand is defective. On these submissions, Mr. Karanth contends that the Order passed by the lower appellate court cannot be sustained and the same is liable to be set aside.

(3.) I shall now consider the first submission made by the learned counsel for the appellants. The decree in O.S. No. 367 of 1947 was obtained by Mundi Hengsu as the Yejamanthi of Aliyasanthana family of which the judgment-debtors and Manku Bhandary were members, and on behalf of the family while it was joint. Thereafter there were partition proceedings among the members of the Aliyasanthana family and a final decree for partition came to be passed in the said suit, on the 14th of September 1954. A certified copy of that decree has been produced and marked in the case as Exhibit P-1. The relevant portion of the decree is as follows: Para 4 of the decree provides-