RAMAIAH Vs. CHENCHAIAH

JUDGEMENT

(1.) This CM.S.A. is directed against the judgment and decree in A.S. No. 24 of 1977 passed by the Court of the Subordinate Judge, Bapatla. When the matter came up for hearing before the learned single Judge, it was felt that since the question involved in the C.M.S.A. is about the interpretation of Order 34, Rules 14 and 15 of the Code of Civil Procedure as well as the decision in Govindammal vs. Chidambara. Tiruvengal vs. Ammanna Ramaswamy Naidu vs. Subbaraya Thevar3 it would be fit and proper that the matter should be heard by the Division Bench to lay down authoritative pronouncement on the subject matter of the dispute.

(2.) The essential facts of the case which are necessary for a proper appreciation of the question in dispute are that in O S. No. 92 of 1971 a decree was passed on the footing of a promissory note said to have been executed towards unpaid purchase money and the suit was decreed creating charge over the property. Subsequently E.P. No. 139 of 1973 for attachment and sale of properties of the petitioner other than the charged property was filed. The Executing Court held in its order in E.A. No. 368 of 1974 in E.P. No. 139 of 1973 relying upon a decision in Govindammal vs. Chidambara (Supra) that nothing precludes the decree holder from proceeding against the properties of the Judgment-debtor not charged for the recovery of the amount by giving effect to the personal decree against the decree holder. In that view of the matter E.A. No. 368 of 1974 filed by the Judgment-debtor under Sections 47 and 151 of the Code of Civil Procedure was dismissed. The matter was carried in appeal in A S. No. 24 of 1977. The Lower Appellate Court relying upon a decision in Tiruvengal vs. Ammanna (Supra) held that the decree sought for cannot be executed against the properties which are not subject matter of the charge and reversed the order passed in E.A. No. 368 of 1974 in E.P. No. 139 of 1973. It is against the said judgment and decree in A.S. No. 24 of 1977, dated 3-12-1977 this C.M.S.A. has been filed.

(3.) It would be pertinent to refer to the terms of the decree passed in O.S. No. 92 of 1971 which throw considerable light on the problem involved in this matter. It is provided in the said decree that the defendant do pay plaintiff the sum of Rs. 1747-50 P with further interest on Rs. 1500/- at the rate of 5 1/2% P.A. from 1-4-1971 till realisation. There is another clause stating that there shall be a charge on the schedule house and it is further provided that the defendant be granted one month time for payment of the decree amount. The argument of Sri P.L.N. Sarma, learned counsel for the respondent in a nut-shell is that the decree holder cannot proceed against the properties which are not charged under the, terms of the decree for the recovery of the amount due to the plaintiff. In this connection he relies upon a decision of the Madras High Court Subbayya wherein it has been held that: