CHUNDRU JAGGAYAMMA Vs. ANUPINDI LAKSHMINARAYANA

JUDGEMENT

(1.) This is an appeal preferred against the Judgment of our learned brother Sanjeeva Row Nayudu, J., in G.M.A. No. 282 of 1955. The facts which lead up to this appeal may be stated.

(2.) One Patturi Jaggamma filed a suit being O.S. No. 21 of 1925 on the file of the Subordinate Judge's Court, Kakinada, for the recovery of the amount due under four promissory notes from the members of the Unupindi family (the five sons of one Jagannatham). She applied for attachment before judgment of certain properties and obtained the same. A decree was passed in her favour on 11th March, 1926 for Rs. 7,337-14-0 together with interest on Rs. 5,000 at 12 percent. from the date of the plaint to the date of the decree and on the sum of Rs. 1,000 at 18 3/4 per cent, for the same period and subsequent interest on the aggregate amount at 6 per cent from the date of the decree together with costs, and interest thereon from the date of the decree. Before ever this decree was put in execution, the defendants sold the properties to one Kolluri Venkataratnam of Pallamkuri in Amalapuram Taluk in 1927. It may be stated here that one of the defendants in the original suit brought by Jaggamma, viz., the second defendant, filed O.S. No. 71 of 1926 for exoneration from liability under the decree obtained by the said Jaggamma on the ground that he had been given away in adoption into another family and as such, he was not liable for any debts incurred and in respect of which a decree had been passed against the members of the family. The vendee Venkataratnam had in his hands some portion of the purchase money and he disputed the right of Jaggamma to recover that amount in satisfaction of the decree obtained by her in O.S. No. 21 of 1925. This action of Venkataratnam appears to have been taken at the instance of the judgment-debtors viz, Unupindi people. This Venkataratnam filed O.S. No. 13 of 1931 in the Court of the Subordinate Judge, Amalapuram, treating it as an inter-pleader suit and deposited a sum of Rs. 9,768-0-4 as the amount in his hands. He stated that the amount be paid over to the person who may be declared to be entitled to it. After filing the suit, he obtained an injunction restraining Jaggamma the decree-holder from with drawing this amount in execution of her decree in O.S. No. 21 of 1925. The interim injunction was subsequently modified by permitting Jaggamma to withdraw the amount on furnishing security and she withdrew the amount on 2nd December, 1931. The date of the deposit by Venkataratnam also is relevant and that is 29th October, 1931. The inter-pleader suit filed by Venkataratnam was dismissed on the ground that such a suit was not maintainable at the instance of Venkataratnam. The son of Jagannatham who contended that he had gone in adoption was the sixth defendant in the inter-pleader suit. He preferred an appeal against the judgment dismissing the inter-pleader suit, being O.S. No. 13 of 1931, and Venkataratnam filed memorandum of cross-objections stating that the attachment obtained by Jaggamma in her suit was neither valid nor subsisting. An appeal (A.S. No. 204 of 1933) and the memorandum of cross-objections were dismissed by the High Court on 3151 January, 1938.

(3.) The learned Judges observed that even it the suit of Venkataratnam was held to be unsustainable on the ground that he was not entitled to maintain such a suit, the findings of the lower Court on the merits could not be allowed to stand and, therefore, those findings were set aside. At the time when the appeal and the memo, of cross-objections were pending in the High Court, there was an application by Ven- kataratnam for stay of execution of the decree obtained by Jaggamma in O.S. No. 21 of 1925. Initially an interim order of stay was passed and later on a final order of stay was passed with the consent of the parties and their advocates before the High Court. The terms agreed upon were that the sum of Rs. 9,768-0-4 withdrawn by Jaggamma on and December, 1931, on furnishing security 'should be treated as withdrawn towards the decree as on the date of the actual withdrawal' and (2) Venkataratnam agreed to pay the balance due under the decree of Jaggamma together with interest. No doubt these consent terms were subject to the result of the decision in the appeal and the memo, of cross-objections. Jaggamma filed O.S. No. 67 of 1939 against Venkataratnam for the recovery of the balance of the amount due to her under the decree. Venkataratnam in his turn filed I.A. No. 783 of 1939 praying for restitution of the amount of Rs. 9,768-0-4 deposited by him and withdrawn by Jaggamma. This relief was asked because it was stated that the High Court in dismissing the appeal and memo. of cross-objections set aside the findings of the lower Court on the merits. The suit filed by Jaggamma for the recovery of the balance under the decree, from Venkataratnam, and the I.A. filed by Venkataratnam were heard together and disposed of. The Subordinate Judge dismissed O.S. No. 67 of 1939 and ordered the application for restitution filed by Venkataratnam, excepting that he did not allow interest on the sum of Rs. 9,768-0-4. Against this order Jaggamma preferred A.S. No. 425 of 1941 and Venkataratnam's sons filed A.A.O. No. 446 of 1941. These matters were heard by a Division Bench of the Madras High Court and disposed of on 24th March, 1943. The appeal against O.S. No. 67 of 1939 was dismissed as also A.A.O. No. 446 of 1941. There was also A.A.O No. 402 of 1941, an appeal preferred by Jaggamma against the order of restitution in I. A No. 783 of 1939 and in that appeal the parties agreed that the question as to whether there was a valid and subsisting attachment of the properties at the time of the institution of the inter-pleader suit should be investigated and decided in restitution proceedings and that if it was held that there was valid and subsisting attachment, Jaggamma should be allowed to retain the sum of Rs. 9,768-0-4 subject to the rights of the other creditors, if any, who may claim rateable distribution. Therefore, this appeal was remanded to the Amalapuram Sub-Court to be heard and decided in the light of the observations of the High Court.