ATMAKURU BUTCHIAH CHETTI Vs. STAYAR RAO NAIDU

JUDGEMENT

(1.) The facts which have given rise to these appeals are as follows: The plaintiff, whom we may call Appanna, and the 1 defendant, whom we may call Butchiah, were brothers. O.S. No. 30 of 1922 was instituted in the Court of the District Judge of Ganjam. for partition of the family property worth three or four lakhs. Defendants 2 to 4 in the suit were minors represented by their guardian, the 1 defendant. In 1923 there was a compromise with reference to certain outstandings due to the family and certain decree debts whereby the 1 defendant was to take over the plaintiff's share in the outstandings and the plaintiff was to be paid Rs. 17,000. This compromise is dated the 23 of October, 1923 and was filed into Court on the 29 of October. It was signed by the plaintiff's pleader on the 27 of October and by the defendants pleader on the 29 of October. It only related to some of the family properties and it was sanctioned by the Court so far as the minor members were concerned as it was in their interests on the 1 of November; and on the next day the Court passed the following order: This compromise of part of the matters in dispute in the suit is recorded; so far as the minor defendants are concerned it has been sanctioned (I.A. No. 380 of 1923).

(2.) As regards the immoveable property, there was a disposal by a preliminary decree on the 21 of February, 1924 and a Commissioner was appointed to make a division; and as regards the rest of the property there was a reference to arbitration and an award was passed on the 20 of December, 1926. This was remitted back and another award was made on the 20 of September, 1927 Under this award the 1 defendant had to pay about Rs. 11,000 to the plaintiff. The final decree was passed on the 27 of September, 1927, incorporating all the matters in one decree. This decree recites the compromise recorded between the parties on the 23 of October, 1923. The plaintiff had several creditors who attached the decree so obtained by him. When execution was sought, the defendants took two objections, (1) that, with regard to the compromise of 1923, Rs. 15,000 had already been paid before the decree was passed and a receipt, Ex. XV, signed by the plaintiff on the 27 of October, had been filed into Court on the 29 of October, and therefore credit must be given for this sum, and (2) that, with regard to the sum of Rs. 11,448 which the defendants had to pay under the award dated the 20 of September, 1927, the plaintiff, being in need of money to conduct the suit, had money advanced to him by the 1 defendant up to Rs. 7,000 and credit for this should be given. The learned District Judge refused to go into either of these questions on the ground that he could not go behind the decree which was sought to be executed. The present appeals are against this order and similar orders which he passed on execution petitions by other creditors.

(3.) It may be mentioned that this receipt Ex. XV seems to have been filed into Court on the 29 of October, 1923, as it bears the Judge's initials on that date. There are no indications of who filed it and it is not alluded to at all in the compromise petition, dated the 23 of October, 1923 and filed into Court which the pleaders for both the parties have signed. The plaintiff when examined in O.S. No. 30 of 1922, in the course of his statement about Ex. XV, said, "I signed the receipt Ex. XV. Defendant 1 (Butchiah) must have done as directed in Ex. XV." The learned District Judge rightly says that this evasive statement cannot be regarded as an admission by Appanna that he had actually received Rs. 15,000 under Ex. XV.