SUBRAMANIAM CHETTIAR Vs. A. MURUGAPPAN CHETTIAR AND ORS.

JUDGEMENT

(1.) This is an appeal by one A.N. Subramaniam Chettiar, the first Defendant in the suit Original Suit No. 132 of 1949, on the file of the Subordinate Judge's Court, Pudukottai, against the order, dated 16th August 1969 of the learned Subordinate Judge dismissing the application. Execution Application No. 161 of 1966, which he had filed under Order XXI Rule 2 of the Code of Civil Procedure to record full satisfaction of the decree so far as he was concerned. There was one Subramaniam Chettiar. He had three sons, Annamalai, Chidambaram and Kuttayan. The first Defendant in the suit (Appellant herein) is the son of Annamalai Chettiar. The third Defendant in the suit is Adaikalam Chettiar alias Kuttayan Chettiar (third son of Subramaniam Chettiar). The Plaintiff in the suit was Deivanai Achi alias Visalakshi Achi, the wife of the said Kuttayan Chettiar. She filed the suit against the three Defendants - -the first Defendant, Chidambaram (her husband's brother) as the second Defendant, and her husband, Kuttayan Chettiar, as the third Defendant. Chidambaram, the second Defendant died and his son C.T. Subramaniam Chettiar was impleaded as his legal representative and figured as the fourth Defendant. The suit was decreed for Rs. 75,748.07 in the trial Court against the family assets of the Defendants. Defendants 1 and 4 filed an appeal, Appeal Suit No. 381 of 1951, against the Plaintiff and the third Defendant. On 21st March 1956, the High Court in modification of the trial Court's decree directed the Plaintiff to proceed against the assets in the hands of her husband, the third Defendant, in the first instance, and only for the balance against the assets in the hands of Defendants 1 and 4, her husband's brothers' sons. She accordingly realised a sum of Rs. 12,502.93 from her husband, the third Defendant. She realised Rs. 33,019.98 from the fourth Defendant in full settlement of his 1/3 liability. Alleging that it was not possible to recover anything more from them, she sought to levy execution for the balance of the decreetal amount against the present Appellant. She filed Execution Petition No. 16 of 1962 on 17th January 1962, but it was dismissed on 19th February 1962. Then on 14th March 1962 she filed another execution petition. It was not numbered; it was returned, but it was not represented. It has been marked as exhibit A -6 in the present proceeding, Execution Application No. 161 of 1966. On 15th June 1962 she filed another execution petition. That again was returned, but was not represented. That has been marked as exhibit A -7 in the present proceeding.

(2.) Then on 15th January 1965, she filed Execution Petition No. 5 of 1965. It has been marked as exhibit A -12 in the present proceeding. The first Defendant filed a counter stating that the decree had been discharged by a family arrangement, dated 12th March 1962 which is set out in full. The purport of it was that he had filed a suit, Original Suit No. 54 of 1949, for partition against his paternal uncle. Kuttayan Chettiar and had obtained a preliminary decree for partition and accounting. He and C.T. Subramaniam Chettiar (fourth Defendant in Original Suit No. 132 of 1949) had filed a suit, Original Suit No. 27 of 1952 in the Subordinate Judge's Court, for a declaration that whatever liability they might have incurred under the decree in the suit, Original Suit No. 132 of 1949, to Deivanai Acbi, ultimately it would be her husband, Kuttayan Chettiar, who would be liable for it. By the family arrangement all these matters were settled by mutual undertakings. For his part, the Appellant was to execute a sale deed of his half share in the house in Arimalam village (in the then Pudukottai State) in favour of Deivanai Achi in satisfaction of her decree in Original Suit No. 132 of 1949. Further certain shares were standing in the name of the Appellant's father and mother. They had to be transferred to the name of Kuttayan Chettiar (Deivanai Achi's husband). The Appellant should report that the decree in Original Suit No. 54 of 1949 had been settled out of Court and he should not press the right of indemnity in Original Suit No. 27 of 1952. Deivanai Achi should similarly report in Original Suit No. 132 of 1949 that her decree had been settled out of Court. The above arrangement was carried into effect by the Appellant filing a petition for recording of full satisfaction in Original Suit No. 54 of 1949. Deivanai Achi also filed a similar petition for recording full satisfaction in Original Suit No. 132 of 1949 on 12tb March 1962, but took it back. That petition, if produced, would bear out the contention of the Appellant. The Appellant had, in pursuance of the arrangement, given up his right in the Arimalam house in favour of Deivanai Achi, but, contrary to that, Deivanai Achi had made it appear that on 31st May 1962 the Appellant had conveyed only the superstructure of the Arimalam house for a sum of Rs. 5,000 in partial satisfaction of the decree in Original Suit No. 132 of 1949. There was no such agreement on the part of the Appellant. It was fraudulent on the part of Deivanai Achi to levy execution against him.

(3.) The Appellant also raised an objection that the amounts collected from C.T. Subramanian Chettiar had not been fully given credit to in the execution petition.