MATHAI Vs. THOMAS

JUDGEMENT

(1.) THE decree-holder and the deceased father of defendants 1 and 2 were joint foremen of a chitty. Under an arrangement among the foremen the father of defendants 1 and 2 was entrusted with the task of realising the chitty assets. In connection with realisation of the assets the decree-holder and the defendant 1 happened to incur a joint liability to a bank. This was while the father was alive. THE Bank instituted a suit against the decree-holder and defendant 1 and realised the whole amount from the decree-holder. THE decree under execution is one passed in a suit for reimbursement instituted by the decree-holder. He had asked for a decree against defendant 1 personally and charged on the plaint schedule properties as also other assets of the deceased foreman in the hands of the defendants. THE property now under attachment formed one of the plaint schedule items. THE trial court negatived the claim for a decree charging the plaint schedule properties but gave a decree personally against defendant 1 and charged on the chitty assets of the deceased foreman. THE decretal portion of the Munsiff's judgment runs thus; "in the result the suit is decreed in terms of the plaint with future interest and costs as against 1st defendant and charged on the chitty assets of the deceased Mathai Chandy. Future interest and interest on costs at 6 per cent. THE specific charge prayed for against plaint schedule properties is disallowed. " Defendant 1 preferred an appeal before the mavelikara District Court against the Munsiff's decree. THE concluding part of the appellate judgment is in the following terms: "in the result, this appeal is allowed to the extent indicated above and is dismissed in other respects. THE plaint claim for the personal decree against 1st defendant is dismissed. THE decree passed by the lower court against the assets of the 1st defendant's father is left undisturbed. In the circumstances of this case, I would direct the 1st defendant to suffer his costs throughout. He will not also be liable for plaintiff's costs". In execution of the appellate decree the decree-holder attached one of the items mentioned in the plaint schedule. Defendant 1, the present appellant raised objection to the attachment on the ground that the attached property belonged to him and that it did not form part of the assets of the chitty conducted by his father. THE executing court as also the appellate court overruled this objection. Hence this second apeal.

(2.) IT is not disputed that the property belonged to the father. As such if the decree under execution is one permitting the decree-holder to proceed against the assets of the deceased in the hands of his sons without any qualification, the second appeal must fail. The extract from the Munsiff's judgment quoted above clearly shows that there is no decree in such unqualified terms. The Munsiff's gave a decree against defendant I personally and the chitty assets of the father in the hands of his sons. On appeal all that the appellate court did was to delete defendant 1's personal liability and to confirm the remaining part of the trial court's decree. That is, the appellate court gave only a decree against the chitty assets in the hands of defendants 1 and 2. No wider scope can be given to the decree passed by the appellate court in view of what that court has said in the decretal portion of its judgment. The sentence relevant for our present purpose reads thus: "the decree passed by the lower court against the assets of the 1st defendant's father is left undisturbed. " IT is not a case where the appellate court had modified the trial court's decree in this respect. The appellate court only confirmed it and we have seen what the nature of the trial court's decree against the assets is. A subtle argument was however raised by the respondent's learned Advocate that the appellate Court had differently understood the trial court's decree and that the executing court was bound to give effect to that meaning. Our answer to it is two-fold. The executing court is concerned with the decree actually passed and not with the reasons given for passing the same. Secondly the plaintiff had not appealed against the Munsiff's decree. The appeal was by defendant I and the appellate Court allowed it in part and confirmed the rest of the Munsiff's decree. There is nothing to indicate that the appellate court had invoked the jurisdiction vested in it under O. XL R. 32 C. P. C. Giving the words employed in the decretal portion of the appellate court's judgment their natural and ordinary meaning the only conclusion we can come to is that that court's decree is against the chitty assets and no more.