UPPALAPATI RAMACHANDRA RAO Vs. BHARATHA LAKSHMI BANK LTD

JUDGEMENT

(1.) This Civil Miscellaneous Appeal is directed against the Judgment and Order in Execution Application No. 751 of 1955 in O.S. No. 44 of 1949 on the file of the Subordinte Judge's Court, Gudivada. The appellant, Uppalapati Ramachandra Rao, is the petitioner in E.A. No.751 of 1955 and fourth judgment-debtor. The respondent is the Bharatha Lakshmi Bank Ltd., Masulipatam.

(2.) The material facts relevant for the purpose of this Appeal are briefly these :- The respondent obtained a decree against twenty-three defendants who were partners in a partnership on the basis of accounts. Defendants 4 and 9 were entitled to relief under the Madras Agriculturists Relief Act IVof 1938. Accordingly, the decree as against them was scaled down to Rs. 19,501-5-9 whereas the decree as against the other judgment-debtors who are non-agriculturists and hence not entitled to the relief under Madras Act IV of 1938, was Rs. 21,880-1-9. The decree-holder collected various amounts from the agriculturist judgment-debtors, that is, defendants 4 and 9 as well as from the non-agriculturist judgment-debtors. In the lower Court, there was a dispute as to the amount which was collected from the various persons. The decree-holder filed E.P.No.12 of 1951 on the file of the District Court, Krishna. The District Court ordered attachment of the properties on 25th January, 1951, and the attachment was effected in the month of February, 1951. Then the District Court suo motu transferred the E.P. to Sub-Court, Bandar, under section 24, Order 21, rule 8, Civil Procedure Code. The Sub-Court, Bandar, had jurisdiction only over some of the properties and the sale was sought for and ordered only in respect of those properties. Ultimately, there being no bidders, the sale was stopped on 15th September, 1952. On 2gth September, 1952, the Execution petition was dismissed and attachment was ordered to continue for 3 months. Thereafter E.A. No. 566 of 1952 was filed in the Sub-Court and it was ordered on 9th December, 1952 and thereupon the present E.P. was filed on 17th April, 1953. The fourth defendant filed E.A. No.751 of 1955 on 20th October, 1955, under section 47, C.P. Code, praying to declare that there was no valid attaehment of immovable property, that the decree-holder was not entitled to bring the properties to sale without fresh attachment and that the fourth defendant had to pay only Rs. 3,500-1-0. Two objections were pressed before the learned Subordinate Judge, namely, (1) that the properties sought to be brought to sale have not been properly attached and that the decree-holder has no locus standi to proceed against them ; and (2) that the 4th judgment-debtor has to pay only a sum of Rs. 3,500 and nothing more. The learned Subordinate Judge found both the objections untenable and, therefore, dismissed that E.A. No. 751 of 1955 with costs. Hence this appeal.

(3.) Before we proceed further, it is here necessary to state that the appellant filed a memo, of compromise into Court (S.R. No. 7556) supported by an affidavit by the 23rd defendant, who is the brother of the appellant, contending as follows. That during the pendency of the appeal, other sums were paid by the judgment-debtors towards the decree. In particular, the last amount of Rs. 5,000 was got paid to the decree-holder by the 11th defendant in full satisfaction of the decree. The decree-holder entered into a compromise and agreed to exonerate the 4th defendant-appellant and the 23rd defendant in consideration thereof, as a result of payment by the nth defendant ; the nth defendant (who paid the sum of Rs. 5,000) got a petition filed before the respondent-Bank to get the decree transferred in the name of his nominee. For the above reasons, this Court may record the memo, of compromise and allow the appeal without costs. Mr. E. Venkatesam, learned counsel for the respondent, has asserted before us with reference to the petition and affidavit that there has been no settlement at all, that the alleged compromise and the alleged payments are not true and that he is in a position to state so with certainty because he got instructions from the head-office of the decree-holder-Bank by letter and by trunk-phone. When questioned, Mr. J. Sambasivarao Chowdary, learned counsel for the appellant, states that the settlement was only oral and that there was nothing in writing about it. In these circumstances, we have no other alternative except to dismiss the petition (S.R. No. 7556) filed to record the compromise. We accordingly dismiss S.R. No. 7556 and proceed with the hearing of the case. Accordingly, the advocates on both sides have advanced their argument before us.