KONDAPURAM BUDDA REDDI Vs. M. RANGA REDDI

JUDGEMENT

(1.) This is an appeal against the order of the District Judge, Anantapur, over-ruling the objection raised by E.A. No.15 of 1959 that the decree-holder could not be permitted to proceed with the execution petition by filing an amended proclamation of sale.

(2.) The facts material for the purpose of this enquiry may be shortly stated. The respondent obtained a joint and several decree in O.S. No.6 of 1945 on the file of the District Court, Anantapur against the petitioner appellant and his partners in business for payment of a sum of Rs. 12,108/- and odd. Some time later, he levied execution for realisation of this decree. The appellant's sons filed a suit against the judgment-debtor for partition and separate possession of the family properties and for a declaration that the debt due under the decree in question was not binding on them. To this action, the respondent was impleaded as one of the defendants. Pending the suit, an application for injunction restraining the respondent from executing the decree in O.S. No.6 of 1945 was made but that was dismissed against which C.M.A. No.631 of 1952 was preferred in the Madras High Court. While the appeal was pending, stay of execution of the decree was obtained on certain conditions. Ultimately, the C.M.A. was dismissed. Eventually, though the suit for partition was decreed, the sons were made liable for the discharge of this debt on the finding that it was binding on the shares of the sons also. The plaintiffs in that action got execution of the decree stayed at various stages either by the trial Court or by the High Court.

(3.) Meanwhile, number of executon petitions were filed but it serves no purpose here to refer to all of them. Suffice it to say that on 8-1-1949 it was agreed between the parties that the one-third share of the judgment-debtor alone should be proceeded against in execution of the decree. On the basis of this agreement, orders in E.A. No.24 of 1952 were passed directing the decree-holder to proceed only against the one-third share of the judgment-debtor. On 23-8-1952 the Court also ordered that an amended proclamation should issue in that regard and the sale was adjourned. It is unnecessary to advert to the other proceedings initiated either by the present appellant or his sons to stop the execution of the decree or to the revisions and appeals carried to the High Court against the orders passed by the trial Court. It is enough to say for the purpose of this appeal that notwithstanding the order of the Court that the proclamation should issue confining the sale to one-third share of the judgment-debtor, the proclamation actually issued covered the whole property and the whole property was sold on 18-12-1958, When this was brought to the notice of the Court, the sale was set aside by the District Judge, because, the sale proclamation was not in accordance with the order of the Court based on the agreement of the parties and also contrary to the request of the decree-holder. He further directed that the decree-holder should sell the property after fresh and correct proclamation. It is to carry out these directions that the decree-holder-respondent applied for amendment of E.P. schedule showing one-third share as belonging to the judgment-debtor. This application was ordered by the District Judge.