KANDIMALLA SEETHARAMA RAO Vs. A V SUBBA RAO

JUDGEMENT

(1.) C.M.A. No. 221 of 1958 is preferred against the Order, dated 28th August, 1958 in Case No. 2/3 of 1957 on the file of the District Court, Khammam, rejecting the contention of the appellants-judgment-debtors, and directing execution of the decree as prayed for by the decree-holder-respondent. C.M.A. No. 42 of 1959 is by the same appellants-judgment-debtors against an order directing attachment in respect of the lands specified in the execution petition.

(2.) C.R.P. No. 1487 of 1959 is by the appellants against an order, dated 25th February, 1959, rejecting the security bond furnished by the judgment-debtors. These matters have been heard together and they may be conveniently disposed of in one judgment. The facts leading up to these cases are as follows :- A decree was passed against one Kandimalla Venkatarama Narasimharao in C.S. No. 247 of 1931 in the High Court of Judicature at Madras on 17th November, 1931. The respondent's adoptive father obtained a transfer of that decree. He filed an execution petition to bring the transferee-decree-holder on record and transmit the same to the District Court of West Godavari for execution. This application was ordered on 22nd February, 1934, and E.P. No. 63 of 1934 on the file of the District Court, West Godavari, was filed for the attachment of moveables of the judgment-debtors. This petition was ordered on I3th November, 1934 and dismissed on 7th December, 1934, as no moveables were found. E.P. No. 45 of 1935 on the file of the District Court, West Godavari, was later on filed for attachment of immoveables. That also was dismissed on 10th September, 1935 for the same reason. E.P. No. 22 of 1938 on the file of the Subordinate Judge's Court, Bezwada, for attachment and sale of immoveable properties was dismissed on 6th September, 1940. E.P. No. 126 of 1940, Sub-Court, Bezwada, for rateable distribution of assets was filed, but on account of the stay order passed by the High Court of Madras, that application was also dismissed. The appellants' father died sometime in 1941 leaving behind him his widow. The respondent thereafter filed the Application No. 3793 of 1953 for transfer of the decree to the file of the District Court of Eluru for execution by attachment and sale of both moveable and immoveable properties of the judgment-detbtors. This application was dismissed by an order of the Master, dated 29th November, 1954 in which he held that there was no previous order by which the present applicant was brought on record as the L.R. of the previous transferee-decree-holder. It is also stated that there was no proof that even the widow of the previous transferee-decree-holder was ever brought on record as his legal representative and that on the ground that the application was filed long after the period of limitation and that the applicant was not entitled to any relief, the said application was dismissed. Another application No. 1938 of 1954 filed by the respondent for bringing on record the legal representatives of the deceased-judgment-debtor was also dismissed by an order of the same date in view of the dismissal of the application No. 3793 of 1953. Application No. 132 of 1955 was thereafter filed in the Madras High Court praying the High Court that the Master's order be set aside and the decree be transferred to the District Court, Eluru. This application came up for orders on 15th March, 1956 before Balakrishna Ayyar, J. The learned Judge allowed the appeal and set aside the order of the Master dismissing the E.P. Application No. 1958 of 1954 which was dismissed by the Master as consequence was also restored to file and the E.P. was sent back for further enquiry. After remand the Master passed an order, dated 31st August, 1956 that a copy of the decree, dated 17th November, 1931 in C.S. No. 247 of 1931 together with the certificate of non-satisfaction be transmitted to the District Judge of Eluru for execution. Meanwhile, having learnt that the judgment-debtors did not possess any properties within the jurisdiction of the District Judge of Eluru and having come to know that they owned certain properties within the jurisdiction of the District Judge of Khammam, Andhra Pradesh, they applied by E.P. No. 54 of 1957 in the Madras High Court for transfer of the decree to the Subordinate Judge's Court, Khammam, for concurrent execution against the properties of the appellants. After the transfer of the decree to the District Court of Khammam, the respondent filed case No. 2/3 of 1957 for execution. To this, two counters were filed by the judgment-debtors contending that the decree cannot be executed against them because a partition was effected between them and their father, who was the original judgment-debtor, long before the passing of the decree under execution. They also stated that they did not inherit any property from the original judgment-debtor on his death, but that his entire properties were given to his grandsons. In an additional counter which they filed it was stated that the estate by name Vedantapuram, which was sought to be proceeded against, was taken over by the Government in accordance with the provisions of the Madras Estates (Abolition and Conversion into Ryotwari) Act, (Madras Act XXVI of 1948), and that the judgment-debtors being 'landholders' within the meaning of the said Act, the decree-holder can only realise his decree from the compensation that will be deposited by the Government under that Act, and that no execution can be taken out against the landholders. They also filed a counter in the Eluru Court containing averments similar to those made in the two counters filed in the Court below. We are given to understand that no final orders have been passed in the E.P. filed in the Eluru Court against the judgment-debtors. Another preliminary objection was raised by the judgment-debtors to the effect that the decree is not executable in the Courts of the Hyderabad State, now Andhra Pradesh, as the decree passed by the Madras High Court was that of a foreign Court at the time when it was passed. This objection was overruled by an earlier order of the District Court, Khammam, dated 19th day of June, 1958. This order has become final and no exception can be taken to it. Though a similar ground is sought to be urged before us, we think that such an objection is not sustainable.

(3.) When the E.P. came up for final hearing before the Court below, the objections raised by the judgment-debtors were overruled and execution was ordered to be proceeded against. The learned Judge held on the question of executability of the decree as against the legal representatives of the original judgment-debtor, that the plea was barred by constructive resjudicata on account of the said plea not haing been raised in the Madras High Court before the transmission of the decree to the District Court, Eluru, or to the District Court, Khammam. He also held that the provisions of the Madras Estates (Abolition and Conversion into Ryotwari) Act, (XXVI of 1948), were not a bar to execution being proceeded with. It is this judgment that is the subject-matter of appeal in C.M A. No. 221 of 1958.