GAJULA BAPAIAH Vs. VELAVALA SUBBAIAH

JUDGEMENT

(1.) Ayyar, J.1. In E. P. No. 13 of 1954 in O. S. No. 69 of 1947 on the file of the Subordinate Judges Court, Tenali, the plaintiff-decree-holder sought to enforce certain security bonds which had been executed for the defendant by various sureties (before the decree was passed), for mesne profits for various years. The learned Addl. Subordinate Judge, Jenali dismissed the E.P. as against the first surety with costs and ordered execution to proceed as against the other sureties. The plaintiff-decree-holder has filed this civil miscellaneous appeal against that order as regards the first surety alone.

(2.) The relevant facts of the case are stated correctly in para 2 of the lower courts order and are as follows:

(3.) The suit O. S. No. 126 of 194G was originally instituted in the court of the Dt. Munsif, Repalli valuing the relief at ten times the land revenue in accordance with the law which was then in force. The valuation was proper in accordance with the decision of the Madras High Court in Subramania Aiyar v. Rama Aiyar, 54 Mad. L. J, 67: (AIR 1927 Mad 1002) while the suit was pending in that Court, the plaintiff filed an interlocutory application for the appointment of a receiver for auctioning the lease-hold right. The learned District Munsiff dismissed that interlocutory application in view of the first surety filing security for mesne profits for 1946-47 by executing a bond on 10-7-1946. Subsequently a Full Bensh decision of the Madras High Court was rendered in Kesanna v. Gangappa, 1947-1 Mad LJ 201: (AIR 1947 Mad 297) according to which the valuation already made was not adequate. Accordingly, the plaint had to be revalued and was found to be beyond the pecuniary jurisdiction of the Dt. Munsif, Repally. The latter returned the plaint for presentation to the proper court on the ground that he had no jurisdiction. That plaintiff received the plaint and represented it before the Subordinate Judge, Tenali who numbered it as O. S. No. 69 of 1947. The suit was ultimately decreed for possession and also for mesne profits for years including 1946-47. The plaintiff decree-holder filed I. A. No. 1737 of 1952 for determination of the mesne profits which were determined accordingly. He sought to recover the amount of mesne profits from the respective sureties. On contest by the first surety, a point for decision was framed by the learned Subordinate Judge as follows: 1. Whether the bond executed by the first surety in favour of the court of the Dt. Munsiff of Repalli must be deemed to have been vacated. The learned Subordinate Judge found this point in favour of the first surety and dismissed the E. P. as against him.