SYEDAMIAN SAHIB Vs. JANAKI AMMAL AND ORS.

JUDGEMENT

(1.) THIS appeal arises in execution proceedings and is from an order of the learned Subordinate Judge of Dindigul confirming the dismissal of an execution application by the learned District Munsiff of Palni. The facts leading up to this appeal are the following.

(2.) THE decree -holder who is the appellant before this Court obtained a decree in O.S. No. 1417 of 1928 on the file of the District Munsiff's Court, Udumalpet, for about Rs. 2,500 on the 30th July, 1929, against one Ayyathurai Mudaliar. The judgment -debtor died subsequent to this decree and an execution application E.P. No. 404 of 1931 was filed on the 16th July, 1931, for attachment and sale of an item of property, R.S. No. 1194/2 and two other items. No question arises in this appeal as regards the two other items and the only question is with, reference to the relief prayed for in respect of item R.S. No. 1194/2. Attachment of the property was ordered and a claim was filed by two persons, namely, Sornammal and her husband one Muthusami Mudaliar, both of whom had been impleaded as the third and fourth defendants in the suit. Their claim was on the footing that the property was not liable to be proceeded against in execution as the property of Ayyathurai and they were entitled to an interest in the property in their own right. The property originally belonged to one Sethurama Mudaliar who by a deed dated 30th September, 1883, Ex. P -1, gifted the northern portion of the property paimash 315 of the extent of 17 -1/2 kulis to Meenakshiammal, one of his sisters. By another deed, Ex. P. -2 dated the 1st October, 1883, he gifted the southern portion of the property of the total extent of 20 -1/2 kulis to another sister Thangathammal. Meenakshiammal died in 1919 and on the 3rd August, 1928, her sons Muthusami and Ayyathurai, and Thangathammal, the donee under Ex. P -2 executed a deed of settlement Ex. P -3. According to the construction placed upon this deed by the High Court in proceedings instituted, the result of this settlement was that the income of the property became available for payment to the creditors of Ayyathurai, the judgment -debtor, and a charge was properly created under the terms of the document on the income. It was also held that notwithstanding the death of Ayyathurai, the charge subsisted so long as the debt remained unsatisfied. Rukmani however was not a party to this document Ex. P -3 so that prima facie as against her interest in the property no charge would be created in respect of the income. The claimants contended on the construction of the document Ex. P -3 that on the death of Ayyathurai there was no attachable interest at all belonging to the judgment -debtor. This contention was upheld by the learned District Munsiff who held that the death put an end to the rights of the creditors but at the same time allowed the claim only in so far as the interest of the claimants were concerned as Rukmani was not a party to the proceeding. An appeal was taken therefrom and the learned Subordinate Judge confirmed the order of the learned District Munsiff. In a further appeal, the High Court held that the income stood charged for payment of the debts notwithstanding the death of Ayyathurai. However, before the learned Judge who dealt with the matter in C.M. S.A. No. 81 of 1934, the contention put forward on behalf of the appellant -decree -holder was apparently stated to be the right to attach an un -divided moiety and on that footing the learned Judge in his judgment stated that the income of the undivided moiety would be available for the creditor. But Clause 2 of the decretal order passed on the footing of the judgment stated as follows:

(3.) MR . Viswanatha Sastri appearing for the appellant contends that E.P. No. 227 of 1940 had not been finally disposed of and is capable of being revived. The prayer for the appointment of a receiver to take possession of the property specified was coupled with a prayer that he should also be enabled to manage the properties for the benefit of the plaintiff till the decree was satisfied by leasing them and collecting the lease amounts. A receiver was appointed and there is nothing on record to show that he was discharged. As I stated there was no reason why the receiver should not have been there and then authorised to take steps for obtaining possession of the property in independent proceedings or in any case to collect the rents and profits, or damages for use and occupation, from the person in possession who had no.higher rights than the judgment -debtor. No reasons were given for the dis -missal of E.P. No.227 of 1940. In a case like this where I am satisfied that the decree -holder was entitled to the assistance of the executing Court to realise the rents and profits of the property forming the subject -matter of the application, the question arises "What is the construction to be placed on order in E.P. No. 227 of 1940 - Mr. Viswanatha Sastri has referred to certain authorities in support of his contention that the execution petition should in circumstances like this, be considered pending and be dealt with by the executing Court.