LAWS(APH)-1974-8-31

HEMADRIBHOTLA SITAMAHALAKSHMI Vs. HEMADRIBHOTLA SATYANARAYANA AND 10 OTHERS

Decided On August 13, 1974
Hemadribhotla Sitamahalakshmi Appellant
V/S
Hemadribhotla Satyanarayana And 10 Others Respondents

JUDGEMENT

(1.) The plaintiff who lost both in the trial court and the first appellate court is the appellant in this second appeal. She filed the suit for amendment of the maintenance decree which she obtained in O.S. No. 225 of 1939 on the file of the Court of the District Munsif, Kakinada by substituting new properties for the property mentioned in the decree on which a charge was created in the decree. There are eight defendants in the suit. The 1st defendant is the father and defendants 2 to 4 are the brothers of the plaintiff's husband. After the death of her husband, the plaintiff filed O.S. No.225 of 1939 for her maintenance. The suit was compromised and a decree was passed on 15-7-1939. According to the terms of the compromise decree, defendants 1 to 4 have to pay nine bags of paddy every year by 15th January to the plaintiff and for payment of the same a charge was created over an extent of 2-00 of land which is described in the A schedule enclosed to the plaint in the present suit. Subsequently defendants 1 to 4 executed Ex. A-2 dated 1-1-1954 registered deed in favour of the plaintiff for giving some other land consisting of two items which are described in schedule B attached to the plaint towards the charge created in the decree in the place of the land mentioned in the decree by stating that the land which was given as charge in the decree originally is in a different village, in the partition between defendants 1 to 4 the land fell to the share of defendants 1 to 3 and 4 and they wanted to sell away the land because it is in a different Village and not convenient for enjoyment and want to purchase some other land in their own village and with that view they requested the plaintiff to accept in its place the charge of the land mentioned above which is of a total extent of Ac.2-06 cents to which the plaintiff agreed and accordingly they were executing Ex.A-2. It was further stated in Ex.A-2, that whenever the defendants fail to pay the plaintiff the maintenance due to her as per the decree, she is entitled to enforce the decree by bringing to sale the lands mentioned in schedule No. II instead of the land originally given as charge in the decree which was described in schedule No. 1 to Ex. A 2. The other defendants in the suit are the purchasers of plaint B schedule land subsequent to the execution of Ex.A-2.

(2.) The defendants resisted the suit. There is no difficulty with regard to the liability of B schedule lands for the maintenance amount payable to the plaintiff under the decree by reason of execution of Ex A-2. If Ex.A-2 is taken as a simple document creating a charge in favour of the plaintiff apart from the decree and without anything to do with it, whenever there are arrears in payment of the maintenance granted under the decree, the plaintiff has to file a suit every time, obtain a decree and in execution of the same bring the property charged under Ex.A-2, to sale. But as prayed for by the plaintiff if the properly given charge under Ex.A-2, is substituted in the decree in the place of A schedule property as having been created a charge under the decree itself whenever there are arrears of payment of maintenance it is not necessary for the plaintiff to file a suit to bring the property to sale and it can be done by mere execution of the decree and hence the necessity for the plaintiff to have the decree amended to make that in the decree itself there is a charge created over B schedule property for the payment of maintenance granted under the decree.

(3.) The trial Court dismissed the suit by holding that the decree in O.S. No. 225 of 1939 cannot be amended now by substituting plaint B schedule lands for plaint A schedule land for the charge and there is no provision of law or authority shown in support of the plaintiff's contention that a decree can be amended by taking into consideration the events that have taken place subsequent to the decree. In the suit, question of limitation for the suit also was raised by the defendants. With regard to that, the trial Court said that it was not argued how the suit is barred by time if the suit is otherwise maintainable. It was also found by the trial Court that defendants 5 to 8 being purchasers subsequent to the execution of Ex. A-2 they are bound by it. In the appeal filed by the plaintiff, the lower appellate Court by a strange deduction came to the conclusion that the suit is barred by time on the ground that subsequent to the execution of Ex-A-2 on 1.1.1954, the plaintiff filed to file any execution petition within three years from the date of its execution. The appellate Court also agreed with the trial court that there is no provision of law for amending a decree by taking into consideration the events that have taken place subsequent to the decree. Accordingly the appeal was also dismissed by the lower appellate Court.