CH SRINIVASARAO Vs. CH NARASIMHARAO

JUDGEMENT

(1.) The two petitions arise out of proceedings in execution in O. S. No. 338 of 1972 Subordinate Judge, Vijayawada Chevaturi. Rajayalakshmamma, the plaintiff, filed this suit against her sons Chevaturi Narayana Rao and Chevaturi Srinivasa Rao, defendants 1 and 2 respectively, for recovery of possession of the plaint Schedule property after ejecting the defendants therefrom and for past and future mesne profits. The suit was resisted by the defendants. The learned Subordinate Judge decreed the suit for eviction and further directed separate enquiry for ascertaining the mesne profits under Order 20, rule 12, Civil Procedure Code. The plaintiff filed an application I. A. No. 650 of 1976 on 4th March, 1976 for ascertainment of mesne profits and for a final decree for the amounts found due. Both the defendants preferred appeal to the High Court against the judgment and decree of the trial Court and obtained stay of all further proceedings.

(2.) Prior to the institution of the suit, the plaintiff had executed a registered settlement deed Exhibit A-2 dated 21st August, 1966, settling the plaint schedule property on her elder son Chevaturi Narasimha Rao and reserving life estate in her. Later, on 29th October, 1976, the plaintiff executed a registered relinquishment deed Exhibit A-3 relinquishing her life interest in the plaint schedule property in favour of Narasimha Rao after receiving consideration from him. The plaintiff died on 31st December, 1976. The High Court dismissed the appeals filed by the defendant on 22nd March, 1977, as not pressed by the defendants. Claiming to be the absolute owner of the plaint schedule property by virtue of the reliquishment deed Exhibit A-3, Narasimtha Rao filed E. P. No. 78 of 1977 on 26th March, 1977, to substitute him in the place of deceased-plaintiff in the execution proceedings and to order delivery of property to him. The defendants filed I. A. No. 652 of 1977 stating that the settlement deed Exhibit A-2 and the relinquishment deed Exhibit A-3 were not binding, that the decree had become infructuous and that Narasimha Rao had no right to continue the execution proceedings. Then Narasimha Rao filed I. A. No. 2159 of 1977, in E. P. No. 78 of 1977 under section 146, Civil Procedure Code to add him as the legal representative of the deceased plaintiff and to permit him to continue the final decree proceedings in I. A. No. 650 .of 1976. By a common order dated 5th June, 1978, the learned Subordinate Judge allowed 1. A. No. 2159 of 1977 and permitted Narasimha Rao to continue the proceedings in E. P. No. 78 of 1977 as the legal representative of the deceased decree-holder. The second defendant has preferred these revision petitions against the common order is I. A. No. 2159 of 1977 and E. P. No. 78 of 1977. Chevaturi Narasimha Rao, the petitioner in the application is the sole respondent herein.

(3.) The first question that arises is whether the respondent Narasimha Rao has the right 10 execute the decree obtained by the deceased decree-holder, Rajyalakshmammament is contended by the learned Counsel for the petitioner that the respondent was not a party to the suit, nor is he a Legal Representative, that the cause of action was personal to the plaintiff and disappeared on her death and that the respondent could only file a suit and establish his title. According to the learned Counsel the right to sue abated, on the death of the plaintiff and the application filed by the respondent was not maintainable either under section 146, Civil Procedure Code or Order 21, rule 16 or Order 22, rule 10, Civil Procedure Code. On the other hand, the learned Counsel for the respondent submits that the petitioner represents the estate by virtue of the terms of the will Exhibit A-2 that the suit was filed in a representative capacity on behalf of the plaintiff and the respondent, the holder of the vested remainder. In any case, it is urged that the respondent is the legal representatives of the plaintiff within the meaning of section 2 (11), Civil Procedure Code.