PONNURU SATYANARAYANA Vs. BOLISETTI NAGABUSHANAM

JUDGEMENT

(1.) This is civil miscellaneous second appeal filed by one Satyanarayana, respondent 4 in E. P. No. 228 of 1946, which was merged in the revived E. P. No. 283 of 1943 in O. S. No. 173 of 1931 on the file of the District Munsif's Court, Repalle, against the orders of both the lower Courts overruling his objections and directing the execution petition to proceed and his properties to be sold for realising the decree amount.

(2.) The facts were briefly these. B. Nagabhushanam, the decree-holder, obtained a simple money decree on a promissory note for Rs. 600, dated 6-21930, against one B. Ramayya, the executant and his surety P. Sitaramaswami, in O. S. No. 173 of 1931. The decree amount was scaled down, and, after several E. Ps., with which we are not now concerned, E. P. No. 283 of 1943 was filed by the decree-holder on 17-9-1943 for recovering more than a thousand rupees due under the scaled down decree with subsequent interest and costs. That E. P. was undoubtedly filed within time under Section 48, Civil P. C., as well as under Article 181, Limitation Act. That E. P. shows Eamayya, defendant 1, as alive, and not as dead, though it is represented to me now by the learned counsel for the appellant, relying on an observation in para 2 of the judgment of the trial Court, and in para 2 of the judgment of the lower appellate Court in A. S. No. 84 of 1948, that defendant 1 was dead already by the time of the execution petition and that his legal representatives have not been brought on record till now. There is, however, no formal or legal proof that defendant 1 is really dead. Whatever that be, the decree itself is an old one dated 17-9-1931, and E. P. No. 283 of 1943 was filed on 17-9-1943, the very last day of limition under Section 48, Civil P. C. Some immovable properties claimed to be defendant 1's were attached and proclaimed for sale on 6-11-1944. But, just before the sale, one Parachuri Subba Rao filed a claim petition, E. A. No. 529 of 1944, regarding those properties, claiming them to be his. It was dismissed as filed too late. The claimant then deposited the sale warrant amount under protest into the Court on 6-11-1944 itself and the Court ordered the stay of the sale of the properties on his application E. A. No. 525 of 1944. On 13-11-1944, the Court closed the execution petition, recording full satisfaction on account of the deposit made by Panachuri Subba Rao under protest. This order was rather curious as the deposit was made under protest by Subba Rao and a stay had been got by him regarding its payment out to the decree-holder, and the Court should have, therefore, awaited the result of the suit filed by the claimant. What is more, it, of course, kept the deposit in Court and did not allow the decree-holder to draw it out, as there was a stay. The claimant filed O. S. No. 296 of 1944 and got the order of the Court dismissing his claim set aside on 2212-1945. On 7-2-1946, the claimant withdrew from Court the amount deposited under protest by him. He was allowed to withdraw the entire amount as the decree entitled him to do so, having recognised his claim to the attached properties. Thereupon, the decree-holder filed E. P. No, 228 of l946 to set aside the order of full satisfaction, erroneously passed by the Court on 13-11-1944, to revive the proceedings in E. P. No. 283 of 1943, to continue the sale proceedings thereunder, and to sell the properties of the present appellant, who was a legal representative of the surety judgment-debtor defendant 2. The District Munsif allowed that to be done despite all the objections of this appellant. The appellant thereupon filed A. S. No. 84 of 1948 in the Sub-Court, Tenali. The learned Subordinate Judge dismissed the appeal, overruling the contentions of the appellant; and he has preferred this C. M. S. A. against that judgment.

(3.) I have perused the entire records, and heard learned counsel on both sides. Mr. Y. G. Krishnamurthy, the learned counsel for the appellant, raised five main contentions. The first was that both the lower Courts went wrong in re-opening the matter of this stale decree after full satisfaction had been entered on 13-111944. The argument is unsustainable. That full satisfaction order was passed erroneously, treating a deposit under protest, by a man claiming independently a title to the attached properties of defendant 1 judgment-debtor, in order to save his own properties from sale, and that stranger third party established his claim in his suit and took back the money deposited by him under protest. Not a pie out of that deposit was paid to this decree-holder. It is, therefore, quite unreasonable to call this a stale claim, simply because the decree is old and the decree-holder had received not a pie. It is a case in which any Court of equity, justice and good conscience ought, in order to prevent "obvious injustice", and according to the ruling of the Full Bench of this Court in Sundaramma v. Abdul Khader, 56 Mad. 490 : (A. I. R. (20) 1933 Mad. 418 F. B.), to proceed afresh with the execution petition, after setting aside the irregular and illegal order entering full satisfaction, as there is an error patent on the face of the records, and the dismissal was for some reason which turned out later on to be untenable and the District Munsif was not responsible for it. Suppose, for instance, a cow has to be delivered to a decree-bolder and some cow belonging to a stranger, found in the court premises and mistaken by the Judge to be the cow in question, is delivered, and full satisfaction entered, can it be said that the matter cannot be reopened when the stranger establishes his right to that cow and recovers it and the cow of the decree-holder has still to be caught hold of and delivered ? So too, if counterfeit currency notes are given in satisfaction of a decree by a judgment-debtor, and full satisfaction is entered by the Judge taking them to be genuine notes, can it be said that the execution petition cannot be reopened when the fraud is discovered and the money has to be paid to the decree-holder ?