SRI RAJAH RAVU VENKATA MAHIPATHI SURYARAO BAHADUR GARU OF OF PITHAPURAM Vs. MATTAPALLI CHALAMAYYA AND ORS.

JUDGEMENT

(1.) THESE two connected appeals arise out of an order made by the Subordinate Judge of Coconada on an application by the decree -holders in O.S. No. 26 of 1928 on the file of the Court of the District Munsiff of Cocanada or the refund of a sum of Rs. 1,466 -6 -0 which the Maharajah of Pithapuram obtained in rateable distribution of the assets of the Zamindar of Polavaram against whom three decrees had been obtained (1) by the Mullapudi people in O.S. No. 92 of 1920, Sub -Court, Coconada, (2) by the Mattapalli people in O.S. No. 26 of 1928 on the file of the District Munsiff's Court, Coconada and (3) by the Maharajah of Pithapuram in O.S. No. 4 of 1924 on the file of the Agency Court, Bhadrachalam. In execution of the decree in O.S. No. 26 of 1928 certain sale proceeds were realised and they were transferred to the Sub -Court, Coconada, which distributed those proceeds to the three decree -holders mentioned above. The Maharajah of Pithapuram got Rs. 1,466 -6 -0 in this distribution on the footing that his decree was a money decree, which was what the first Court as well as the High Court on appeal held but on appeal to the Privy Council it was held by its judgment dated 28th April, 1936, that he was entitled only to a charge decree having a vendor's lien and that he had no in ht to proceed against the general assets of the judgment -debtor.

(2.) ASSOON as there was an order of rateable distribution in faveur of the Maharajah of Pithapuram. the Mattapalli people filed O.S. No. 487 of 1933 making him and the Mullapudi pepledefen ants and asling for a declaration that they had a first charge over the proceeds and that neither the Maharajah of Pithapuram nerd the Mullapudi people had any right in the sale proceeds. An injunction was sought against them. This suit was dismissed by the Court on the ground that the plaintiffs (Mattapalli people) had no first charge over the proceeds. On appeal which was decided on 6th January. 1938, the decree was confirmed but a declaration was embodied in it to the effect that the Maharajah of Pithapuram was not entitle d to any share of rateable distribution, as it had teen held by the Privy Council by that date that he was only a charge decree -holder and not a money decree -holder.

(3.) THE learned Subordinate Judge held that the application was not covered by Section 144 of the Code of Civil Procedure but that he had inherent powers under Section 151 to make an order directing the Maharajah to refund the amount to which it was found that he had no title as the Privy Council had held that it was a charge decree and not a money decree. He further held that so far as the Mullapudi people were concerned they had no right to claim a s are in the amount to be refunded as they had not filed any suit under Section 73(2), as was done by the petitioners, urging that that the distribution of any part of the assets to the first respondent was improper and that they should get their share in the amount wrongfully paid to him.