SREEPADA RAMA MURTHY Vs. NORE SUBBAMMA DIED

JUDGEMENT

(1.) It is often said that it is easy to secure a decree but it is much more difficult to execute it. This case provides a very telling illustration of that unfortunate position that obtains in the law Courts today.

(2.) Three suits 0. S. Nos. 61 of 1950, 11 of 1952 and 12 of 1952 were filed by three sisters for partition of their father's properties into four shares and for possession of 1/4th share each, allotting the remaining 1/4th share to the other sister who was impleaded as the 1st defendant. These three suits were filed in the Subordinate Judge's Court, Eluru. Along with partition they also sought a decree for rendition of accounts of the profits, past and future. They added two sons of the 1st defendant as defendants on the ground that one of them was managing the properties on behalf of their mother, the 1st defendant and both of them had the benefit of the profits. Preliminary decrees were passed on 25th of September, 1953. Three appeals A. S. Nos. 265 to 267 of 1954 were preferred to the High Court against these preliminary decrees but they were dismissed on 9th November, 1965. Final decree proceedings were taken and the properties were divided by metes and bounds. Ascertainment of profits was also made and a final decree was passed on 17th of November, 1958. It may be noticed here that the Court earlier granted a preliminary decree for a 1/4th share to all the four sisters in all these properties and also for rendition of accounts of the profits from 1942 to 1958 against defendants 1, 8 and 9. In pursuance of this preliminary decree, in so far as the profits were concerned, a final decree was passed on 17th of November, 1958. Though the final decree was finalised even in regard to profits in November, 1958 and despite two decades have rolled by ever since then, the decree in regard to profits is still in the process of execution. This civil miscellaneous appeal is by one of the sons of the 1st defendant against whom decree for profits was passed. Here we are concerned with O. S. No. 12 of 1952 filed by one of the daughters for partition, for rendition of accounts and for profits. As we have said earlier, all the three suits were decreed under a common judgment and the appeals also were dismissed by the High Court of Andhra on 9th November, 1955.

(3.) The decree for rendition of accounts and for payment of profits was passed in favour of the plaintiff against the 1st defendant, who was her sister, and her two sons who were impleaded as defendants 8 and 9 in O. S. No. 12 of 1952 out of which the present civil miscellaneous appeal arises. The decree-holder in O. S. No. 12 of 1932 has filed I. A. No. 439 of 1963 to make an enquiry as to whether any amount had been paid to her by defendants 1, 8 and 9. To this, defendants 1, 8 and 9 were parties and raised their objections. On hearing the matter the Court decided that no amounts had been paid. Since the properties of defendants 1,8 and 9 were situated within the jurisdiction of the Tanuku Court, the decree-holder filed E.A. No. 781 of 1970 for transmission of the decree to the Tanuku Court for execution. After giving notice to the three judgment-debtors, this transmission application was allowed. Thereafter she filed E.P. No. 12 of 1971 in Sub-Court, Tanuku, for executing the decree for profits passed in her favour in O. S. No. 12 of 1952. The present appellant, who was the 8th defendant and judgment-debtor and who was respondent to E.P. No. 12 of 1971, raised an objection that In view of the observations made by the Bench of the High Court in A. S, No. 267 of 1954, the final decree should have been revised and that the final decree already passed on 17th November, 1958 as confirmed in appeal A.S. No. 293 of 1959 is not an executable decree and therefore no execution proceedings should be proceeded with This objection was based on the observation of the Division Bench in A.S No. 267 of 1954 which is to the following effect : -