GANSHAMADAS Vs. V SIVARAMASUBRAMANIAM

JUDGEMENT

(1.) The reliefs prayed for in this application can be extracted in the words of the 14th appellant who has sworn to an affidavit in support of this application. The petitioners pray for orders of this Court directing -

(2.) The facts as gathered from the rambling affidavit filed in support of the petition, short of all unnecessary details, may be stated. The appellants who are the petitioners filed a suit in O.S.A.28 of 1964 for a declaration that "the plaintiff-appellants are, as from 1-3-1964 the owners of the buildings and superstructures constructed by the first defendant on the lands leased to him" and for possession of the buildings on the site and also for mesne profits at the rate of Rs.12000 per month from 4-8-1968 till possession is handed over. (The affidavit does not say as to what decree was passed by the learned trial Judge). But it is seen that the Supreme Court by its judgment dated 18-8-1971 in C.A.74 of 1971, (AIR 1971 SC 2366), has passed a decree in respect of the first relief of declaration, but directed this court to determine the mesne profits in accordance with law. It is seen that the first defendant has delivered possession of the suit sites with the buildings on 24-3-1974. Pending determination of mesne profits, the first defendant died and his legal representatives were brought on record. N.S.Ramaswami, J., learned single Judge of this Court, fixed the mesne profits payable by the defendants at Rs.6250 per month from 4-8-1968 to 23-3-1974, with interest at 6 per cent. The appellants have now filed O.S.A.22 of 1979 before this court for Rs.812075-15 (wrongly stated as Rs.8,12,07-15 in the affidavit), being the difference between the amount claimed and the amount decreed with interest at 12 per cent. The petitioners say that they are confident of their appeal being allowed and they would be entitled to nearly Rs.16,00,000. It is further stated that the properties of the first defendant, Varadaraja Pillai, which are in the hands of the second defendant, at Nos.77 and 77B. Omalur Main Road, were attached for realisation of the balance due under the decree dated 26-4-1977 but the said E. P. 295 of 1979 was closed on 10-7-1981, directing the attachment to continue and that another execution petition E.P.113 of 1982, for sale of the property already attached in E.P.295 of 1970 was filed and the same was pending and the balance of Rs.1,11,525-51 is due under the decree of the trial Judge. The petitioners pray that the attachment already effected in E.P. 295 of 1979 in O.S.28 of 1964 may be continued pending disposal of the O.S. Appeal, so that they may be able to realise the amount that may be decreed in the O.S. Appeal, as otherwise the first respondent may dispose of the property attached by sale.

(3.) This petition is resisted by the first respondent, son of Varadaraja Pillai, who says that this petition is second of its kind as the earlier petition in C.M.P.9096 of 1984, for attachment before judgment was dismissed on merits, that the learned single Judge, after taking into consideration all the documentary evidence fixed the mesne profits at the rate of Rs.6250 per month, that the appellants have attached this theatre Central Talkies, and the unfinished theatre and that he has deposited the entire decree amount in E.P.115 of 1982, and the E. P. has been closed and no amount is due in respect of the decree passed on 26-4-1977. The first respondent further says that the claim of the plaintiffs at the rate of Rs.12000 per month is a tall claim and that there are no merits in the appeal. It is further stated that the entire decree amount has been paid and full satisfaction of the decree has been recorded and that the allegation that he is proposing to sell the property is not true.