K Vs. HENJARI GOWDA

JUDGEMENT

(1.) This is the decreeholder's second appeal against the order made by the Addl. Civil Judge, Tumkur, in Ex .A.19 of 1973 reversing the order made by the Munsiff at Madhugiri in Ex. Case 457 of 1972.

(2.) The appellant filed OS. 603 of 1964 for recovery of certain amount from the respondent. The suit was decreed on 22-1-1966 and the respondent was directed to pay the decretal amount in four annual equal instalments. That decree was affirmed on appeal by the Civil Judge, Tumkur. The respondent . challenged the said decree in RSA.362 of 1968 in this Court. This Court dismissed the said appeal on the 9th Feb. 1972. Neither the first appellate Court nor this Court modified the direction of the Court of first instance regarding payment of the decretal amount in four annual equal instalments.

(3.) The decree holder filed Exn.Case 457 of 1972 for realising the decretal amount in the Court of the Munsiff, Madhugiri, on the ground that the judgment-debtor has not paid any amount under the decree. The judgment-debtor resisted the execution application on the ground that it is premature. His contention is that the executable, decree in this case is the decree passed by the High Court in RSA.362 of 1968 and that therefore, he is entitled to pay the decretal amount in four annual equal instalments from the date of the decree of the High Court i.e. 9-2-1972. As the execution application was filed even before the expiry of the first year from the date of the decrte of the High Court, it was contended, that the execution Application is premature. This objection was overruled by the executing Court and the execution was directed to proceed. Against the said order, the respondent preferred Exn.A.19 of 1973 in the Court of the Civil Judge, Tumkur. The learned Addl. Civil Judge allowed the appeal, set aside the order of the executing Court and dismissed the, execution application on the ground that it was premature. The learned Civil Judge, held that there is a merger of the decree in the deeree of the High Court made in RSA.362/68 on 9-2-1972. He further held that the four annual equal instalments must be deemed to have been granted with effect from the date of the High Court's decree.