NARAYANI AMMA Vs. GOVINDAN NAMBI

JUDGEMENT

(1.) Revision arises from an order in execution. Revision petitioners are some of the decree holders in a decree for recovery of possession. The decree was challenged in appeal. After the appellate decree, some of the decree holders transferred their rights to some of the judgment debtors. The transferee-judgment debtors resisted the execution petition and questioned the maintainability of the execution petition. Two execution applications were also filed, one by the transferor-decree holders for recording full satisfaction of the decree and the other by the transferee-judgment debtors who sought an order that the decree is not executable. By a common order dated 7-1-1989, the Subordinate Judge, Hosdurg directed symbolic delivery to be effected. In consequence the execution applications were dismissed. Hence the revision by the petitioners in the execution petition.

(2.) Seven items of immovable properties were sought to be recovered from the possession of the defendants, 12 in number, on the strength of title. There were 9 plaintiffs. By the Trial Court decree the plaintiffs were found entitled to recover the plaint schedule properties except items 4 and 5. The claim for mesne profits was disallowed. An appeal was preferred by the defendants wherein the plaintiffs filed Cross Objections. The appeal was dismissed and allowing the cross objections the appellate court directed the defendants to pay mesne profits, the quantum of which was left open to be considered in execution proceedings. It appears that since then there was a compromise between some of the decree holders and some of the judgment debtors which resulted in two assignment deeds, documents No. 2559/82 and 2560/82. By document No.2560/82 the properties directed to be surrendered excluding 29 cents in R.S.63/2A (part of item No. 3) were assigned by some of the plaintiffs (decree holders) to some of the defendants (judgment debtors). By the other document some of the judgment debtors transferred their rights over 29 cents of land in R.S.63/2A in favour of some of the plaintiffs (decree holders). Observing that respondents 1 to 10 in the execution petition have taken assignment of the fractional interest of respondents 11 to 15 and have become coowners of the property, it was held that they cannot be dispossessed by executing the decree. In consequence, the petitioners in the execution petition were found entitled to be in joint possession of the property along with the judgment debtors. That resulted in the direction for delivering the properties symbolically to the petitioners.

(3.) When the matter came up before a learned Single Judge of this Court, it was felt that there is no authoritative pronouncement on the question of law involved in this revision. The conflicting views of the various High Courts were placed before the learned Single Judge. In view of the conflicting decisions' and since there is no authoritative pronouncement on this question by this court, the matter was referred to a Bench of two Judges. That is how the matter has come up before us.