SOLASA LAKSHMI NARAYANA SOMAYAJULU Vs. NIMMAGADDA PUNNA SIDHANTI

JUDGEMENT

(1.) This is a second miscellaneous appeal on behalf of the third judgment-debtor which arises out of execution proceedings started by the transferee-decree-holder, respondent-1 before me.

(2.) The brief facts are: One Kasturi Annapoornamma obtained a mortgage decree against six persons, namely (1) Rallabandi Sitha Mahalakshmma, (2) Solasa Saraswatamma (being minor by guardian Solasa Venkatappaiah, (3) Solasa Lakshmi Narayana Somayajulu, (4) Guda Venkata Narasimham, (5) Pureti Naramma and (6) Korrapati Ademma who were respondents Nos. 3 to 8 in the execution petition. Respondent-1 before me took transfer of this decree and filed E.P. No. 231 of 1947 on 6.10.1947 for recognition of the transfer of the decree after notice to the judgment-debtors and for recovering a sum of Rs. 2349-2-6 by sale of the mortgage property. He impleaded the original decree-holder Annapurnamma as first respondent in the execution petition, and after her death, her legal representative was impleaded as respondent-2 and the judgment-debtors were impleaded as respondents 3 to 8. During the pendency of the execution petition, the 4th respondent Solasa Saraswatamma filed E.A. No. 364 of 1948 under Or. 21, Rule 2 and Section 47 of the C.P.C. to record satisfaction of the decree alleging that he took a nominal transfer in the name of the appellant and that therefore the decree was no longer subsisting and that the respondent could not be recognised as the transferee decree-holder. The learned Subordinate Judge tried both the applications together. He dismissed E.A. No. 364 of 48 and recognising the transfer directed that the transferee decree holder could proceed only against the first judgment-debtor's share. Aggrieved by this order of the executing court, the transferee decree-holder, respondent-1 before me filed an appeal before the Addl. Dist. Judge. The Addl. Dist. Judge allowed the appeal holding that the transferee-decree-holder could proceed against the mortgage properties in the hands of all or any of the judgment-debtors. The third judgment-debtor has now come up in appeal to this court.

(3.) Sri Konda Kotayya, the learned counsel for the appellant, contended that the Additional District Judge has erred in holding that the transferee-decree-holder was entitled to proceed against the mortgage properties in the hands of all or any of the judgment-debtors, on the assumption that the equity between the judgment-debtors was not thrashed out prior to the passing of the decree. He urged that this finding of the learned Addl. Dist. Judge was erroneous and could not be sustained in law. Conceding that Or. 21, Rule 16 does not apply, he however contended that the executing court rightly directed the execution of the decree against the first respondent's share in the mortgage properties, having regard to Rule 196 of the Civil Rules of Practise and Or. 21, Rule 66, C.P.C. Reliance was placed on the cases of Narasimha Rao v. Subbarayudu 51 MLJ 135 , Raghavachariar v. Krishna Reddy 46 MLJ 32 and Narasimham v. Latchayya 1944 (1) MLJ 459 On behalf of the respondent transferee-decree-holder, it is contended by the learned counsel that the decree-holder has the right to proceed with the decree in whatever manner he likes and the judgment-debtor cannot force the decree-holder to execute the decree in the manner he likes. Reliance was placed on the cases of Thanmul Sowcar v. Ramados Reddiar 55 MLJ 358 , Naranayaswami Chetti v. Vellalaya Pillai 45 MLJ 722 and Arunachalam Chetty v. Murugappa Chetty Vol. 4 Law Weekly 327 .