VARADA BAI Vs. MAHADEVA MAHENDALE

JUDGEMENT

(1.) Respondent-1 has filed Original Suit No. 41 of 1976 in the Court of the Civil Judge, Puttur, against the petitioners and respondents 2 to 4 and another for possession of the plaint schedule properties and for past and further mesne profits. He has based his right on the basis of the will executed by his mother. The petitioners are defendants 1 and 2 in the suit. Petitioner No. 1 and defendants 3 to 5 are the sisters of the 1st respondent. Original Will is not produced. The suit is decreed, on the basis of the alleged true copy of the Will dated 29-4-1966 (Exhibit-P5), in the following terms: "The suit is decreed. Defendants 1 and 2 are directed to put the plaintiff in possession of item-1 of the plaint A Schedule immovable properties and such of the movable properties as are in existence in the Thamankar house in the suit properties. The plaintiff shall be entitled to recover the compensation amount payable under the provisions of the Karnataka Land Reforms Act in respect of Items 2 and 3 of the Plaint A-Schedule properties. Issues 5 and 6 are left open to be decided in the final decree proceeding under Order 20 Rule 12 C.P.C. Defendants 1 and 2 shall pay to the plaintiff compensatory cost of Rs. 500/-under Section 35A, CPC, in addition to the normal post in the suit. The Court fee payable on the plaint shall be the first charge on the decree. Forward a copy of the decree to the Deputy Commissioner, Dakshina Kannada, for takings steps to recover the amount due to the State by way of Court fee." This Civil Petition is filed by defendants 1 and 2 for permission to prosecute the appeal preferred against the aforesaid decree, as indigent persons. It is not the stage to go into the merits of the case. The case of the first petitioner is that in the absence of the Will relied upon by respondent No. 1, she is entitled to a share in the suit properties as she is one of the daughters of the executant of the Will in question and so also defendants 3 to 5.

(2.) The suit has been decreed on 21st December 1985 against the Petitioners. Decree for possession in respect of Item No. 1 of the plaint A-Schedule properties which consists of a house and the land attached to it, is passed.

(3.) Respondent-1 filed the Execution Case No. 22 of 1986 for execution of the aforesaid decree. The executing Court, on 20-2-1986, passed an order directing issue of warrant for delivery of possession. The delivery warrant was actually issued to the bailiff on 21-2-1986. An application was filed by the petitioners in the suit on 21-2-1986 to keep the execution of the decree in abeyance. That application came up before the Court on 21-2-1986. However, it was ordered to be brought up for counter and for hearing on 22-2-1986. As to what happened on 21-2-1986 and 22-2-1986 is better revealed from the order sheet itself. Therefore, it is reproduced : "21-2-86. Plff by MRMR. D1, 2 & 4 : by P.A.A. D3, 5 by K.T.B./N.S. D. 6 dead. I.A. 20 : Under Section 151 CPC filed by Sri P. A. Adiga, Adv. for D1, 2 & 4 praying to (1) take up the accompanying application for stay out order and to hear the same. I.A. 21 : Under Order 41 Rule 5(2) and Section 151 CPC filed praying to stay the operation of the decree passed in this suit, until stay is obtained from the Appellate Court. Notice given to Sri M.R.M. Rao, Adv. Notice not given to K.T.B./N.S. Advs. Counter and hear 22.2.1986. Inld/-M.S.B. 21.2 C.J. Puttur. 22.2.86 : P MRMR D1, 2, 4 PAA D3, 5 KTB/NS I.A. 20, 21 Counter filed. Sri K.Y.H. for M.R.M.R. Prays time till 24.2.1986 for Hg., in I. As. as Sri M.R. is out of Station. Sri P.A.A. propose that the application be taken not today and a slay be granted for one month to enable his party to obtain stay from Appellate Court. Since (1) Sri M.R.M.R. not present, I am not passing any final orders on the application. But, however, execution of a decree be kept in abeyance till 26.2.1986. For arguments I.A. on 26-2-86. Inld. M.S.B. 22/2 C. J. Puttur. Delivery warrant in execution case 22/86, has been already issued on 21.2.86 with police aid, and entrusted to Sri N. Somanath, Amin. He has already gone on duty and is not available for communication. Sd. P. N. 22.2 Communicate at the earliest. 2.30 p.m. Sd. M.S. Bhat 22-2-86 Civil Judge & JMFC, Puttur"