MARRIDDI JANIKAMMA Vs. HANUMANTHA VAJJULA PARADESI SARMA

JUDGEMENT

(1.) These four cases are connected and they can be disposed of together. The matters arise out of execution proceedings relating to the decree in O. S. No. 15 of 1945 on the file of the Subordinate Judge, Amalapuram. The litigation has a long history and the necessary facts for the purpose of deciding the questions involved in those four cases are as follows:- One Vajjula Suryanarayana Murthy filed a reversionary suit O. S. No. 15 of 1945 for possession of various suit schedule properties including items 76 to 79 of the plaint schedule, Defendants 58 to 62 and 82 in the said suit claim to be in possession of these items and disputed the right of the plaintiff to get a decree against them. On the other hand, defendant No. 67 claimed the entire extent of these very same items as belonging to her exclusively. Therefore, there was a triangular contest. In the trial Court there was a decree in favour of the plaintiff as against defendants 58 to 62 and 82 and they were directed to put the plaintiff in possession of certain specified extents in their possession. The claim of defendant No. 67 was negatived and she was also asked to put the plaintiff in possession of the entire extent of these items. Against the decree of the trial Court appeals were filed in the Madras High Court A. S. No. 299 of 1947 was filed by defendants 58 to 62 and 82. It may be mentioned here that defendant No. 82 who is said to be the tenant was in possession of these Lands. A. S. No. 303 of 1947 was filed by defendant 67 who claimed the entire items for himself while defendants 58 to 62 and 82 claimed a portion to an extent of Ac. 4-79 cents out of these items in their own right as against the 67th defendant. The Madras High Court dismissed A. S. No. 299 of 1947 and allowed A. S. 303/47. Against the said judgment of the Madras High court the plaintiff preferred an appeal to the Supreme Court. The appeal was allowed and the Supreme Court remanded A. S. No. 303 of 1947 on 30-10-1964 to this Court for fresh disposal and same was dismissed by a Division Bench of the Court on 10-10-1966, granting a decree to the plaintiffs in respect of all the items viz., items 76 to 79 to an extent of Ac. 15-111/2 cents including the lands held by defendants 58 to 62 and 82. It may be mentioned here that defendant No. 60 died on 1-7-1960. Before the Supreme Court defendants 58 to 62 were not parties. After the decision of the Andhra Pradesh High Court the decree-holder filed E. P. 7/67 before the Sub. Court, Amlapuram for transmission of the decree to the District Munsifs Court, Tanuku, in whose jurisdiction the properties are situated. It was accordingly transmitted. The decree-holder filed E. P. No. 50 of 1967 in the District Munsifs Court. Tanuku for delivery of possession of items 76 to 79 and portions of the said items have been delivered under the orders of the Court. Defendant No. 58 and the legal representative of defendant No. 60 and defendants 61 and 62 filed execution applications (E. A. Nos. 238, 239, 240 and 266 of 1967 in E. P. No. 50 of 1967) claiming title to the said extents of the property that the decree was not executable. The said applications were dismissed by the trial Court and they preferred appeals against the said orders (A. S. No. 157 to 160 of 67) and defendant No. 82 filed A. S. No. 187 of 1967 against the orders in E. P. No. 50 of 1967. The said appeals were allowed holding that these defendants were not before the Supreme Court, and they were not bound by the Judgment of the Supreme Court. Aggrieved by the said orders the decree-holder preferred C. M. A. Nos. 2 to 6 of 1969 and the said appeals were allowed and the orders of the trial Court dismissing S. As. 238 to 240 and 266 of 1967 and the order made in E. P. No. 50 of 1967 directing delivery of the property, were confirmed. The decree-holder in pursuance of the orders of the High Court filed E. P. No.40 of 1971 to revive E. P. No. 50 of 1967, and the trial Court ordered on 12-2-1971 the delivery of the properties by 10/03/1971. One Mutyala Satyanarayana and three others (appellants 6 to 9) caused obstruction claiming to be the tenants and that they are entitled to remain in possession of the property under the Tenancy Act. They claimed to be inducted into possession of the property after the suit had been instituted and also after the matter was finally concluded by the High Court on 10-10-1966. The decree-holder filed E. A. No.141 of 1971 under Order 21, Rules 35 and 38, C. P. C. to direct the delivery of the property covered in E. P. No. 40 of 1971 after removing the obstruction caused by respondents 6 to 9 with police aid. In the said E. A. respondents 1 to 4 filed counters and contended that E. P. No. 50/67 itself was not maintainable and therefore. E. P. 40 of 1971 was bad and in the result the decree holder had no right to take any police aid for obtaining delivery of the E. P. Schedule property. They also contended that the High Court passed the decree on 10-10-1966 after the death of defendant No. 60 and therefore the same abated inasmuch as no legal representatives were brought on record, and that the High Court passed a decree against a dead person and therefore it is not valid and enforceable even against the other defendants. The other tenants also filed counters. The learned District Munsif, dismissed E. A. No. 141 of 1971 along with other E. As. Filed by other parties seeking only symbolic delivery with which we are not concerned. The learned District Munsif however dismissed E. P. No. 40 of 1971 also as not maintainable. Aggrieved by the orders of the learned District Munsif in E. A. No. 141 of 1971 and E. P. No. 40 of 1971 the decree-holder filed A. S. No. 12 of 1971 and A. S. No. 13 of 1972, respectively, in the court of the Subordinate Judge, Tanuku. Nunna Bhavanamma the legal representative of defendant No. 60 raised a preliminary objection in both these appeals that the Sub-Court had no jurisdiction to entertain the appeals and that the appeals lie only to the High court on the ground of pecuniary jurisdiction. These applications were numbered as I. As. 98 and 99 of 1977. The learned Subordinate Judge dismissed both these applications and allowed A. S. Nos. 12 and 13 of 1972. As against the orders in A. S. Nos. 12 and 13 of 1972 respondents therein have preferred C. M. S. A. Nos. 42 and 43 of 1977 and against the appeals in I. As. 98 and 99 of 1977 C. R. Ps. 4041 and 4042 of 1977 are filed in this Court.

(2.) At the outset Sri. N. Bapiraju, the learned Counsel for the respondents, contends that C. M. S. A. Nos. 42 and 43 of 1977 are not maintainable and at the most revision petitions could have been filed in this Court. According to the learned Counsel in the definition of decree as amended, the words "Section 47 have been omitted, and as a result the questions that are to be decided by the executing court under Section 47 do not come within the meaning of the decree and consequently an appeal or a second appeal under Section 100 C. P. C. does not lie to the High Court. The learned counsel for the appellants, on the other hand, contended that Section 97 (2) (a) of the Amending Act makes it clear that the amended provisions are not retrospective. This contention of the learned counsel for the appellants has to be rejected in view of Section 97 (3) of the amending Act which is in the following terms:

(3.) Sri J. V. Krishna Sarma, the learned counsel for the appellants however relied on a decision of this Court in Nandipati Tati Reddy v. Syed Meera Hymavathi (1978) 2 ALT 521: (AIR 1979 Andh Pra 70). That was a case relating to attachment proceedings under Order 21 Rules 58 and 59 C. P. C. Narasinga Rao J. held that with regard to an attachment subsisting before the enforcement of the amended provisions, the old provisions would continue to apply. This decision of the learned Judge is with reference to Section 97 (2) (q) of the Amending Act which saves those proceedings. Therefore, the learned Judge did not consider the scope of Section 97 (3). As a matter of fact in Paragraph 15 of the Judgment, the learned Judge observed that for purposes of that case it was not necessary to consider the question whether the remedy of a suit contemplated by Order 21, R. 63 of the unamended Code would be available with regard to any order passed in the claim petition. The learned counsel for the appellants also relied on a decision of the Allahabad High Court in Shyama Devi v. Ramjas Rolling Mills, AIR 1979 All 16 and other decision of the Delhi High Court in Syndicate Bank v. Rallies India Ltd., AIR 1979 Delhi 40. We have examined both those decisions. In the first decision the learned Judge held that Section 97 (2) (q) of the Amendment Act is an exception to the law enunciated in Section 97 (3) of the Amendment Act. There can be no dispute about this principle. In the decision of the Delhi High Court the learned Judges made a reference to Section 97 (3) and held that the said Section deals with contingencies other than those provided by sub-sec. (2) of Section 97. It can, therefore, be seen that these two decisions are of no assistance to the appellants. In this context we may also refer to a decision of the Calcutta High Court in Chanti Charan v. Monindra Nath AIR 1979 Cal 12, wherein it is held thus:-