D VENKATAPATHI NAIDU Vs. V SIDHAMMA NAIDU

JUDGEMENT

(1.) These two appeals have been filed against a common judgment and order passed in E.P. No. 99 of 1955 and E.A. No. 203 of 1955 in O.S. No. 56 of 1948 on the file of the Subordinate Judge, Chittoor. The appellants in both the appeals were the petitioners in E.A. No. 203 of 1955, respondents 1 to 7 in E.P. No. 99 of 1955 and defendants 1, 2, 3, 4, 6 and 7 in O.S. No. 56 of 1948. The respondents herein were petitioners 1, 2, 3, to 6 in E.P. No. 99 of 1955, respondents 1 to 6 in E.A. No. 203 of 1955 and the plaintiffs in O.S. No. 56 of 1948. For the sake of convenience and brevity, the respondents are hereafter called the decree- holders and the appellants the judgment-debtors.

(2.) The relevant facts of the case may be briefly stated :- The decree-holders filed E.P. No. 99 of 1955, an application for execution of the decree in O.S. No. 56 of 1948 by delivering the properties decreed. E.A. No. 203 of 1955 is an application by the judgment-debtors for reviewing and setting aside the order passed by the Sub-Court, Vijayawada, in E.A. No. 144 of 1955. O.S. No. 56 of 1948 is a suit for partition which was ultimately compromised and on 19th March, 1951 a final decree in terms of the compromise was passed. On 24th April, 1951, the decree-holders took out E.P. No. 70 of 1951, on which delivery was ordered on 26th April, 1951. It could not be effected on account of some obstruction by certain objectors. On 12th July, 1951, the decree-holders filed E.A. No. 174 of 1951 for removing the obstruction and effecting delivery. On that application, the Court directed the obstruction to be removed and passed an order on 18th September, 1951, for delivery of possession of the properties. In the meanwhile the obstructors filed C.R.P. No. 1490 of 1951 on the file of the High Court, Madras wherein they also applied for stay of delivery of possession of the properties in C.M.P. No. 11040 of 1951 and the High Court ordered stay pending the main C.R.P. No. 1490 of 1951. On 16th October, 1951, the Sub-Court, Chittoor, passed an order in E.P. No. 70 of 1951 to the following effect. "Stayed by. the High Court, vide telegram dated 28th September 1951 and Order, dated 28th September 1951 in C.M.P. No. 11040 of 1951. Dismissed."

(3.) Subsequently on 5th March, 1952, the order of stay in C.M.P. No. 11040 of 1951 was vacated by the High Court. Thereafter, on 14th March, 1952, the obstructors filed the suit O.S. No. 24 of 1952 in the Subordinate Judge's Court, Chittoor, and also took out an application I.A. No. 240 of 1952 in that suit, applying for stay of the execution of the decree in O.S. No. 56 of 1948. The Subordinate Judge ordered stay on certain conditions till 19th March, 1952. A compromise order was passed on LA. No. 240 of 1952 on 10th April, 1952, between the obstructors on the one hand and the decreeholders on the other and I.A. No. 240 of 1952 was closed. C.R.P. No. 1490 of 1951 was dismissed by the High Court on 21st January, 1953. By that time the stay order in O.S. No. 24 of 1952 was not in force. Ultimately, on 16th December, 1954, the suit O.S. No. 24 of 1952 was dismissed. There was an appeal against that suit in A.S. No. 66 of 1955. On 18th April, 1955, the decree-holders in O.S. No. 56 of 1948 took out E.A. No. 144 of 1955 to restore E.P. No. 70 of 1951 to file and to' proceed with the execution. In that application, the decree-holders urged that suit O.S. No. 24 of 1952 was dismissed on 16th December, 1954 and that subsequently the objectors have not deposited on 15th April, 1955, as undertaken in the consent memo which had been filed in connection with I.A. No. 240 of 1952. On 30th june, 1955, the learned Subordinate Judge allowed that application without notice to the judgment-debtors and directed the restoration of E.P. No. 70 of 1951 to file. Here it may be stated that one of the contentions of the judgment-debtors was that no notice was issued to them before making an order in E.A. No. 144 of 1955 for restoration of E.P. No. 70 of 1951 to file. This is not denied by the decreeholders. On 15th July, 1955, the decree-holders did not press E.P. No. 70 of 1951 and the latter was dismissed. On 16th july, 1955, the decree-holders filed E.P. No. 99 of 1955 for delivery of the properties together with police aid. The judgmentdebtors field E.P. No. 203 of 1955 for reviewing the order, dated 3Oth June, 1955, passed by the learned Subordinate Judge in E.A. No. 144 of 1955 and to vacate the same.