CHIRALA BUCHI REDDI Vs. SATTI SAVITRAMMA

JUDGEMENT

(1.) This appeal under Clause 15 of the Letters Patent against the judgment of our learned brother Sanjeeva Row Nayudu, J. raises the question whether the decree-holder is bound to proceed against the properties given as charge in respect of the decree amount first, before enforcing the personal liability under the decree against the judgment-debtor and whether any different conditions apply to a compromise decree.

(2.) The respondent, Savitramma, filed a suit O. S. No. 42 of 1948 for partition of the properties or in the alternative for maintenance, against 18 defendants which ultimately ended in a compromise decree under I.A. No. 1240 of 1951 on 30-8-1951. Under this decree, the respondent was to be paid Rs. 7,000.00 by the 1st and 3rd defendants. Satti Subbarayal Reddy and Chirla Butchireddi, in full settlement of all her claims. In pursuance of this agreement, a sum of Rs. 3,000.00 was paid at the time of the compromise and for the balance of Rs. 4,000.00 the respondent-decree-holder was given liberty to collect insurance amounts from the Andhra Insurance Co., Ltd., Masulipatam and Oriental Insurance Company of Bombay and in the event of the insurance ft mounts not being realised, she was entitled to collect the said sum of Rs. 4,000 from defendants 1 and 3 and from the charged properties mentioned in plaint schedules D, F and H.

(3.) The decree-holder-respondent filed E. P. 86 of 1953 on 31-8-1953 alleging that she failed to collect the insurance amounts, and since defendants 1 and 3 have to pay the amount of Rs. 4,000.00 mentioned in the decree, she prayed for attachment and sale of the properties described in the execution petition belonging to the 3rd defendant after due notice to defendants 1 and 3 under Order 21, Rule 22 C.P.C. This view was opposed and the 3rd defendant in his counter-affidavit stated that the 1st defendant is his brother-in-law and the plaintiff decree-holder is the step-mother, of the 1st defendant and that in O.S. No. 42 of 1948 he was added as a party unnecessarily as he purchased the D schedule properties from the 1st defendant in 1945 itself. At the time of the compromise he was asked to join formally in the compromise petition on the representation that no relief would be asked against him. The 1st defendant has now become inimical towards him, because he refused to reconvey the D schedule properties to him, unless he returned the price which the 3rd defendant paid for it. Due to this enmity he colluded with the respondent and both of them are milking a common cause against him. He further averred that the amounts so far paid under the compromise decree which amounted to more than Rs. 8,100.00 have in fact been paid out of his own funds and that the insurance amounts which were made over to the respondent as per paragraphs S! and 3 of the compromise decree, could have been easily collected by the decree-holder inasmuch as she has received the amount of Rs. 75.00 mentioned in paragraph 3 of the decree; but she. is deliberately refraining to take steps with the avowed object of collecting the decree amount from him, so that her step-son, the 1st defendant, could collect the insurance amounts. It was further contended that he was not personally liable under the decree to pay the amount and that the decree-holder has to attach and self the properties charged under the decree; and that the decree passed in favour of the decree-holder is not a maintenance decree, but one charged on the properties in D, F and H schedules to the plaint. That apart, the 1st defendant sold on 24-1-1952 one item from plaint F schedule to one Pusarala China Krishna Murthi for Rs. 3,250.00 and executed an agreement of sale in his favour and out or the purchase money, a sum of Rs. 2,050.00 was reserved for the respondent and that the purchaser wanted a sale deed to he executed by the respondent and the 1st defendant as there is a charge in respect of that property. R.W. 1 Mantri Rama-rao, power of attorney holder from the 1st defendant says that in pursuance of that power of attorney Ex. P-l, he entered into the agreement of sale. It is stated that they (D and F schedule properties) are valuable properties and building sites in Visakhapatnam worth more than one lakh of rupees and that the H schedule properties are also valuable so that the contention was that when there are those valuable properties, the degree-holder was actuated by mala fides in ignoring them and trying to execute the decree against the 3rd defendant for the small sum of Rs. 4,000.00.