KRISHNAN Vs. KESAVA PILLAI

JUDGEMENT

(1.) The additional 2nd plaintiff decree holder in O.S. No. 772 of 1105 on the file of the District Munsiffs Court at Kuzhithura is the appellant. The question for determination in this appeal is whether the rights under the decree in this case subsist and whether the decree holder is entitled to enforce such rights against the judgment debtor.

(2.) As per a partition arrangement embodied in a deed of partition executed by the plaintiff and the defendants in this case, along with the other members of their tarwad, the judgment debtor in this case was to pay a certain sum of money to the plaintiff towards the adjustment and equalisation of the respective shares. The plaintiff has obtained the decree in this case for recovery of the said amount. But by the subsequent decree passed in O.S. No. 50 of 1106, the partition deed on the basis of which the plaintiff has obtained the decree in O.S. 772 of 1105, was itself set aside. The plaintiff and the defendants in this case are all parties to O.S. 50 of 1106 also and as such the decree in that case is binding on all of them. All the same the additional 2nd plaintiff in O.S. 772 of 1105 applied for the execution of the decree in that case. The 2nd defendant objected to the execution and contended that the decree has become unexecutable because it has been superseded by the decree in O.S. 50 of 1106 under which the right for recovery of the money covered by the decree in O.S. 772 of 1106 has been extinguished. This objection was upheld by both the lower courts, and hence this second appeal by the decree holder.

(3.) On behalf of the appellant it is argued that the decree in O.S. 50 of 1106 has not in express terms set aside the decree in O.S. 772 of 1105 which must therefore be deemed to be in force even after the passing of the decree in O.S. 50 of 1106. We see no force in this contention. The validity and sustainability of the partition deed which formed the basis of the decree in O.S. 772 of 1105 had been challenged in the subsequent suit O.S. 50 of 1106. This means that all the arrangements embodied in that partition deed inclusive of the provision enabling the plaintiff in O.S. 772 of 1105 to recover a specific sum of money from the defendants in that case, had been called in question in O.S. 50 of 1106. The decree in O.S. 50 of 1106 did not reserve in favour of the plaintiff in O.S. 772 of 1105, who is a party defendant to O.S. 50 of 1106, the right to recover any amount on the strength of the partition deed. On the other hand, the partition deed in its entirety was set aside by the decree in O.S. 50 of 1106 resulting in a negation of the plaintiffs claim in O.S. 772 of 1105 to recover any amount on the strength of that partition deed. Thus so far as his right in respect of the amount is concerned, there have been two decrees, the earlier decree upholding his right and the later decree negativing that right. In such a situation the earlier decree cannot be deemed to be subsisting as a valid and enforceable decree. It has been superseded by the later decree.