KOTHAMASU VENKATA SUBBAYYA Vs. UDATHA PITCHAYYA

JUDGEMENT

(1.) These two Civil Miscellaneous Second Appeals arc directed against the orders passed by the Subordinate Judge, Narasaraopet, in A.S. No. 15 of 1955 and A.S. No. 111 of 1954 respectively, which were appeals filed against the orders of the District Munsif, Gurazala, in E.A. No. 666 of 1954 and E. A. No. 368 of 1949 respectively in O.S. No. 190 of 1943 on the tile of the Court of the District Munsif, Gurazala. The two C.M.S. As. arise out of the same set of facts and can conveniently be disposed of by one judgment.

(2.) To appreciate the contentions raised on behalf of the appellant Venkata Subbayya, it is necessary to set out the facts in some detail.

(3.) On 12-7-1944 Pitchayya, the respondent in these two C.M.S.As., who will be referred to hereafter as the decree-holder, obtained a decree for Rs. 4864-14-0 against six defendants including the appellant and one Sadasivayya, who were defendants 1 and 2 respectively in O.S. No. 196 of 1943 on the file of the Court of the District Munsif, Gurazala. That was a suit filed for dissolution of partnership and settlement of account. The decree was transferred to the District Munsifs Court, Narasaraopet, for execution and on 5-4-1948 the decree-holder filed E.P. No. 243 of 1948 for attachment and sale of movable properties of the appellant and Sadasivayya, for recovery of the amount due to him under the decree with costs amounting to Rs. 6845-8-3.That application was opposed by the appellant and Sadasivayya alleging that the decree-holder could realise the amount only by sale of the assets of the partnership and not by proceeding against their personal properties, and that the application was barred by time. On 5-7-1948 the learned District Munsif overruled those objections and directed execution to proceed. That order was taken in appeal by both the judgment-debtore and those appeals were A.S. Nos. 341 and 376 of 1948 on the file of the District Court, Guntur. Sadasi-vayya sought stay of execution proceedings pending the disposal of his appeal A.S. No. 341 of, 1948 and made an application I.A. No. 477 of 1948 under Order 41, Rule 5 and Section 151 C.P.C. Notice was ordered on that application. So on 9-7-1948 Sadasivayya again made another application I.A. No. 482 of 1948 in that appeal under Order 41, Rule 5 C.P.C., requesting the Court to receive the amount of Rs. 3500 as security, to keep that amount in deposit till the disposal of his appeal and to grant interim stay of execution of the decree in the lower court in E.P. No. 243 of 1948.In the affidavit it was stated that in his earlier application, notice had been ordered by the Court, that it would take time to serve that notice, that the decree-holder was rushing through to get his properties attached, that the decree-holder had singled out the petitioner to be proceeded against, that in case he was successful in the appeal there would be no possibility of getting himself reimbursed, and as such the amount of Rs. 3500 might be received from him and that he might be given an order of interim stay. On this application, on 9-7-1948 itself, the learned District Judge ordered interim stay and notice, while directing the office to receive the amount of Rs. 3500. To this application, the decree-holder filed a counter on 26-7-1948 opposing the grant of stay on the ground that Sadasivayya had not chosen to deposit the entire decretal amount. On 29-7-1948 the learned District Judge made the following order: "Heard learned counsel for both" sides. The Petitioner has deposited Rs. 3500 in this Court. Interim stay order is made absolute. No order as to costs." 2. The appeals filed by the appellant and Sadasivayya were transferred to the Subordinate Judges Court, Guntur, and both the appeals were dismissed by the Sub-Court on 21-2-1949. 3. On 2-3-1949 the decree-holder made an application I.A. No. 230 of 1949 in A.S. No. 341 f 1948 for the issue of a cheque to him for the amount of Rs. 3500 which had been deposited by Sadasivayya. On this, notice was ordered to 29-3-1949. On 16-4-49 it was dismissed as not pressed without notice batta having been paid.