CHAMAVA RACHAYA Vs. IRAYA SANGAVA HIREMATH

JUDGEMENT

(1.) This is an appeal in execution of the decree in First Appeal No. 04 of 1903 and Suit No. 214 of 1899.

(2.) Shankaraya and Kalasaya, who had brought a suit against the respondent Iraya, were declared owners of the immovable property in the suit except the three lands which were in the possession of Iraya. On appeal the High Court in First Appeal No. 64 of 1903 on 18 January 1904, amended the decree of the lower Court and directed that the pLalntiffs do recover possession of all the property in dispute from defendant 1, i.e., Iraya, subject to the maintenance of defendant 1, to which the Court declared he was entitled. The Court further directed the lower Court to fix in execution a liberal and suitable allowance as maintenance to defendant 1 having regard to the value and extent of the share of Baslingaya, i.e., the share to which Baslingaya would have been entitled on a partition of the joint estate. There were several applications for execution made by Iraya for determining the amount of maintenance and the decree was kept alive by applications made within three years of each other. In darkhast No. 232 of 1912, Mr. Koppikar, First Class Subordinate Judge, fixed the maintenance at Rs. 1,000 per year. Iraya then sought execution of the order for maintenance determined by Mr. Koppikar, and sought execution thereof by sale of certain property, and purchased eight lands on 14 October 1914, and took possession on 26 February 1915. It appears that certain widows of the family wore not served with notice of the application for execution and they appealed to this Court in First Appeal No. 34 of 1914. This Court set aside the order of the lower Court and dismissed the application of defendant 1 Iraya to execute the order obtained in darkhast No. 282 of 1912. The Court also set aside the order made in the darkhast for maintenance of Rs. 1,000 to be paid to Iraya. This decree was passed on 12 November 1914.

(3.) The present appellant Rudrava, the daughter of Shankaraya, brought a suit on 18 September 1914, No. 292 of 1914, against Iraya for a declaration to the effect that she was not bound by the Court's order dated 4 January 1913, made in darkhast No. 232 of 1912 and that the order was null and void. Rudrava's right was declared and the decree was passed in favor of Rudrava. The effect of the decree in Rudrava's suit was that the order of 4 January 1913, made in darkhast No. 232 of 1912, was null and void, and a permanent injunction was given to Iraya not to execute the above decree. That decree is dated 12 September 1918, but long before that decree the order of 4 January 1913, was already executed. Rudrava therefore brought a second Suit No. 178 of 1918, on 26 June 1918, against Iraya the respondent and others. That suit was dismissed on 9th July 1921, but it was remanded according to the decision of this Court in Chimawa V/s. Gangawa A.I.R. 1929 Bom. 413, and Rudrava was put in possession of the property which was purchased by Iraya in execution of the order of 4 January 1913. The present darkhast, No. 294 of 1924, was filed by Iraya on 8 July 1924.