MANJUNATHAGOWDA PRABHUGOWDA PATIL Vs. SHANTAVVA

JUDGEMENT

(1.) The short question which falls for determination in this petition is ; whether the executing Court may go behind the order made in I.A. No. III by which certain sum was required to be paid by defendants 1 to 10 to the plaintiff. The suit was for partition and separate possession. Preliminary decree has been passed. In the preliminary decree no provision is made for mesne profits. In fact it has been specifically disallowed, obviously, in view of the maintenance order pendente lite. The preliminary decree is under appeal. In any event that question will be decided in the Regular First Appeal pending in this Court. So far as the executing Court is concerned, two objections were taken by the 3rd judgment debtor. They were : i) that the order made in I A No. III had merged in the preliminary decree and therefore by denying mesne profits it must be held that the order made on I.A. No. III had merged in the final order directing drawing up of preliminary decree ; ii) that all the defendants are liable and only defendant-3 cannot be made to pay the amount as directed in I.A. No. III.

(2.) The first contention need not detain me long. Even though direction was made to pay maintenance on an application made by the plaintiff, as between the parties to the suit, the issue in I.A. No. III was concluded and assumed a formal determination in regard to the question of right to maintenance during the pedency of the suit. Therefore, it has the force of a money decree which may be executed when the decree is not satisfied. The trial Court had therefore correctly come to the conclusion that it is not an order which is not executable.

(3.) The second point raised in this Court should also be rejected. The order made on I.A. No. III is directed against all the defendants. Therefore, liability is joint and several. It is open to the decree holder to sue one or all of them. Even in that regard the executing Court has reached the correct conclusion. The order does not call for interference. Revision is rejected.