VASKURI AYYANNA Vs. VEDANGI GANGAYYA

JUDGEMENT

(1.) In connexion with proceedings for the determination of mesne profits a receiver was appointed to auction the land and the respondent in this case has executed a document in respect of the second crop, due for harvest in February 1923. The document is Ex. J and is styled a security bond. Under it the respondent undertook to raise the dalva (second) crop of 1923 and to deliver 70 bags of dalva paddy. If he failed so to deliver them, he bound himself personally for the loss which might be awarded by the Court. In pursuance of this arrangement an application was made to the Court to enforce the terms of the document and the District Munsif passed a decree for the full 70 bags at the rate of Rs. 6-4-0 per bag. In appeal by the respondent the learned Subordinate Judge found on the merits that he was prevented from raising the crop according to his undertaking and reduced the amount payable to 20 bags. This is a second appeal preferred by one of the plaintiffs in the original action, claiming the full amount according to Ex. J.

(2.) Mr. Lakshmanna wants to take the preliminary point that an application of this nature would not lie and that the proper course would be to enforce Ex. J in a separate suit. The learned Subordinate Judge has discussed this question, though not very lucidly, and, as his decision shows, must be taken to have accepted the maintainability of the application. Here I do not think that I can entertain an objection of this character because Order 41, Rule 22, Civil P.C. while it allows a respondent to support the decree on any of the grounds decided against him, will not permit him to take cross-objections to it unless he has filed a memorandum of objections. The effect of this objection would be not to support the decree, but to cut the ground from under it, and accordingly as there is no memorandum of objections I must hold that it is inadmissible.

(3.) Coming now to the merits, the respondent made objection to the claim on two separate grounds. The first was that he was prevented from taking possession of the land by one Venkataratnam. As to this the learned Subordinate Judge finds the allegation unproved. Mr. Lakshmanna would put his objection on a wider ground, namely, that it is not shown that the lessor has put the lessee into possession of the property. But this again would be an objection of a character which could only be made by a memorandum of objections because if it were to succeed the award of the lower Court must be set aside altogether.