SATHULURU SEETHARAMANUJACHARYULU Vs. NARRA VENKATASUBBAMMA

JUDGEMENT

(1.) In this case an interesting question of law was opened, namely, as to whether the maintenance decree-holder with a charge (1 defendant) was to be held to have a superior claim to the plaintiff who purchased from a Court auction purchaser. It is admitted by Mr. Lakshmanna for the appellant that if the debt for which the property was brought to sale in execution of Small Cause No. 1906 of 1916 was not a debt binding on the family the claim of the 2nd defendant must prevail. The District Munsif held that the decree debt in S.C.S. No. 1906 of 1916 was not a binding debt which could prevail against the claim of the maintenance of the 1 defendant. He gives various reasons which have induced him to come to this conclusion and they are set out in paragraph 6 of his judgment. He observed inter alia that "the extract from the suit register could have been produced to show the nature of the claim in S.C.S. No. 1906 of 1916." There are, however, various other circumstances which induced him to come to,the conclusion that it has not been proved that the debt is a debt binding on the family. The Subordinate Judge, on the other hand, mainly or exclusively from the fact of the extract from the suit register which he admitted and marked as Exhibit H comes to the opposite conclusion. It is said that this Exhibit H supplies the missing link because it shows that the promissory note which is referred to in the endorsement of Exhibit B is the very note referred to in the suit register. The circumstance under which the admission of Exhibit H was applied for and allowed seems to be somewhat extraordinary. The plaint was filed on the 20 June, 1922 and the decree in the first Court was not made until the 23 November, 1923. On the 29 January, 1924, an appeal was filed in the Lower Appellate Court and on the 4 December, 1924, there was a petition to receive Exhibit H, that is to say over a year after the learned District Munsif had commented on its absence and nearly 21/2 years from the institution of the suit. No order was made on this petition which is extremely vague in its allegations, the affidavit in support saying "it is, therefore, very necessary that these two documents of which Exhibit H is one should be received" without saying any reasons why this document could not have been filed in the District Munsif's Court. The matter is governed by Order 41, Rule 27(d). The Appellate Court did not require the document to be produced so that the Court must be satisfied that there is some other substantial cause to allow such document to be produced. No substantial cause is alleged and further with regard to the proviso in Sub-section (2) the Court has not recorded any reason for its admission. On the 16 April, 1925, two days before judgment in appeal was delivered, the judge ordered this extract from suit register to be received and marked Exhibit H. Cases having gone to the length of saying that such reception of additional evidence under those circumstances is totally without jurisdiction. In Kaki Mutyalu V/s. Kanigolla Siva Raghavayya (1915) 3 L.W. 163 a Bench of this Court held that the admission of a document in evidence, was illegal where no reasons were recorded. There was no application for the admission of the evidence and no reasons were shown for failure to produce the document in the Court of first instance. Apart from this irregularity or illegality in admitting Exhibit H in evidence, the learned Judge has, to my mind, failed to deal with some of the aspects of this question of fact that presented themselves to the District Munsif. It is important to have this question of fact settled and I must, therefore, send the case do in for a finding to the Subordinate Judge as to whether or not the debt in question, i.e., the decree-debt in S.C.S. No. 1906 of 1916, is a binding debt of the family. The Subordinate Judge need not again enter into the question as to whether it takes precedence or not of the claim for maintenance of the 1st defendant. That is a question of law which if necessary can be argued later on. As I have said, it seems to me that on the authority of Kaki Mutyalu V/s. Kanigolla Siva Raghavayya (1915) 3 L.W. 163 the reception of Exhibit H was illegal. If the appellant here can persuade the Subordinate Judge that substantial reasons did exist for his failure to produce the documents in evidence in the Court of the District Munsif, the Subordinate Judge may consider the same. Otherwise, the finding is to be returned on the evidence on record. Six weeks for finding and 7 days for objections.

(2.) In compliance with the order contained in the above judgment, the Court of the Subordinate Judge at Masulipatam submitted the following Finding.-This appeal has been remanded for a finding as to whether or not the decree debt in S.C.S. No. 1906 of 1916 was a debt binding on the family of the 1 defendant. .....

(3.) My finding is that the debt in S.C.S. No. 1906 of 1916 was a debt binding on the family of 1 defendant. I may add that I have not taken Exhibit H into consideration. A petition was filed before me for its admission but it was rejected for the reasons given on it.