PEMMANI RANGAPPA NAIDU Vs. GURRAM VENKALAKSHAMMA AND ORS.

JUDGEMENT

(1.) THIS appeal arises out of an execution petition, E.P. No. 19 of 1946, in O.S. No. 47 of 1929 on the file of the Subordinate Judge's Court of Nellore. The suit was one for partition instituted by the plaintiffs, who are respondents 1 to 3 here against three defendants. The second defendant was the karta of the family and is the appellant. The other defendant -respondents can be ignored.

(2.) ON 1st February, 1933, a compromise decree was passed and it is in respect of that decree that the execution petition out of which this appeal arises was issued. The relief sought by the petition was for a division of moveable and Immovable properties belonging to the family, amongst the members according to their shares. Three lots of property are concerned - -(1) promissory notes representing debts due to the family, (2) cattle which belonged to the family, and (3) items of Immovable property similarly possessed. The suit was instituted in 1929, and in 1933, when the decree was passed, it was tolerably manifest that the promissory notes were all barred by limitation. In fact during the progress of the suit they were all ordered to be deposited into Court and that order was complied with by the present appellant, the late karta of the family. So far as the cattle were concerned, they were admittedly and undoubtedly in the possession of the appellant. As regards the Immovable property, that was the subject of some proceedings in execution prior to the petition out of which this appeal arises.

(3.) FIRSTLY in regard to the promissory notes: From the date when pursuant to an order of Court, the appellant parted with their possession and deposited them into the Court, where they have since remained, he had no possession of them either as trustee or in any other capacity. That aspect was apparently overlooked by the learned Judge. The items of moveable property, namely, the promissory notes and cattle, are set out in Schedule I of the decree. In regard to the cattle, the schedule records that they were in the possession of the appellant. There is no such indication in regard to the promissory notes. In paragraph 6 of his judgment the learned District Judge seems to have held the view that, even if the pro -missory notes became barred owing to reasons beyond the control of the appellant, nevertheless in some way he would be responsible for that operation of the law taking place. I am unable to accept his view in the matter, but no examination regarding that is necessary inasmuch as the appellant was not having possession of the promissory notes. They were in the custody of the Court and the plaintiffs themselves (the decree -holders) equally with the appellant, could have taken steps to prepare for suits to be filed upon these notes if the debtors failed to make payments according to their respective promises. The promissory notes in no way being in the possession, custody or power of the appellant, he is under no obligation to account in respect of them.