(VALLURI) SURYAPRAKASA RAO Vs. BHAMIDIPATI VENKATA DIKSHITALU

JUDGEMENT

(1.) The respondent in this second appeal had filed a suit for specific performance against three defendants with regard to the execution to him of a sale-deed. A compromise decree was passed. The main terms of the decree were that defendants 1 and 3 should execute a sale-deed in favour of the plaintiff, and the said document be filed for registration on 30 May 1917, at the expense of the defendants, who should get it registered, that the plaintiff do pay to the defendants Rupees 4,570-8-0 settled to be paid before the Registrar at the time of registration that the defendants do receive the said sum, that a certain kadapa should be cancelled, and the registered sale-deeds executed in favour of the husband of defendant 1, and that this kadapa and certain other documents should be handed over to the plaintiff, that as defendant 2 did not join with defendants 1 and 3 in the execution of this document and had become ex parts, and an ex parte decree had been passed against him, in his place the document should be signed by the Court and registered in case the sale-deed cannot be executed and filed for the purpose of registration in due time, thereupon an execution application shall be filed in Court, and sale deed shall be caused to be executed that the plaintiff should be entitled to have the costs of such proceedings deducted from the sale amount, that the plaintiff should pay Rs. 200 in respect of past kists due to defendants within two months separately to defendants 1 and 3, that the defendants should give up all the rest of the kist, that each party should bear their own costs, that from Fasli 1326 (1916-17) the plaintiff should enjoy the suit land with all absolute rights, and that, if the plaintiff cannot pay the amount before the Registrar on the aforesaid due date, that is, on 30 May 1917, the defendants should recover the amount thence forward with interest at 12 annas per cent per month till the amount is paid.

(2.) As defendants 1 and 3 were quarrelling among themselves as regards their shares of the purchase money, the sale-deed was not executed or got ready by the defendants on 30 May 1917, and the plaintiff having got into possession of the land did not trouble himself to execute the decree, and get the sale-deed executed by Court. On the other hand the defendants filed E.P. No. 49 of 1917 in the Temporary Sub-Court of Cocanada, and after notice the plaintiff appeared by a vakil and put in a counter on 19 October 1917, in which he said he was ready to pay the money as per the decree, but that defendants 1 and 3 were attempting to receive all the money from him after themselves executing the sale-deed without defendant 2. As the sale deed was not registered within the time allowed the proceedings were shopped. Next came an E.P. on 5 September 1923, as a result of which a sale deed was executed on 17 December 1924. Another E.P. No 5 of 1924, was put in on 10 January 1924, but apparently dismissed without orders. The present E P. No. 20 of 1926, was put in on 18 January 1926 Defendant 4, the present appellant, and defendant 2 filed this E.P. in which they asked the Court to issue notice to the plaintiff of the proceedings and also direct him to deposit into Court the amount due to defendants 2 and 4 in respect of the sale-deed executed by them in favour of the plaintiff, and deliver the sale-deed to the plaintiff. In this petition they claimed interest from 30 May 1917, till 10 January 1924. The plaintiff was absent and the Court made an order that he should deposit Rupees 7,489-11-6 in ten days and take delivery of the sale-dead. In default the property in the sale-deed would be put up for sale and the amount realised. This amount includes the interest, but not the costs claimed in the petition. The plaintiff paid about Rs. 2,000 under this decree, but objected to paying interest from 30 May 1917.

(3.) It was urged before the learned Subordinate Judge that the matter was res judicata owing to the order in E.P. No. 5 of 1924. The learned Subordinate Judge found against this contention. He held however that under the decree the interest claimed was due. The District Judge also held that the matter was not res judicata, but that interest was not due under the decree as from 30 May 1917, so he awarded only interest from 16 February 1924, when the plaintiff-respondent had notice that the deed has been executed. Defendant 4 in E.P. No. 20 of 1926 ha? appealed against this order. The first question is from what date the interest claimed as under the compromise decree is due. I agree with the learned District Judge that the reference to interest in the decree contemplates it as due from and after the date of the execution of the document. The words it the plaintiff cannot pay the amount before the Registrar at his office on the aforesaid due date, cannot possibly mean, in my opinion, "if he cannot pay the amount because the defendants have not executed the document." Under such a construction the defendants would be entitled to recover the whole amount of the purchase money and also interest thereon without executing any sale-deed. That is clearly an impossible construction. The trial Court says that the plaintiff did not deposit the money into Court even then (on 19 October 1917, when he put his counter in E.P. No. 49 of 1917) or after he was personally served with notice in E.P. No. 5 of 1924 put in by the same defendants. On that petition the learned Subordinate Judge of Cocanada even asked him to deposit the money into Court in ten days. He did not do so. He must therefore be deemed to have been unable to deposit the money on 30 May 1917 as mentioned in the decree.