YELLAPRAGADDA SRIRAMACHANDRA VENKATANARAYANA Vs. RUVVADA NARASIMHA ROW

JUDGEMENT

(1.) I have had the advantage of reading my learned brother's judgment and I am not prepared to dissent from his interpretation of Order XXI, Rule 19, Civil Procedure Code. In accepting it, however, I observe that the difficulty arising from the division of the interest of a deceased party to a decree between two legal representatives does not seem to have been contemplated in that rule, since it does not include even a provision similar to Rule 18(3)(a) and that I am, with all respect, unable to apply language used by Batchelor, J., in Madappa Ganapa Hegde V/s. Jaki Ghosal Gabn Ghosal 30 Ind. Cas. 893 : 40 B. 60 : 172 Bom. L.R. 689 to the present case, since that difficult was not there under consideration. But the language of Rule 19 in my opinion is consistent only with the conclusion reached by my learned brother and I accept his conclusion that the agreement set up between first and fourth defendants was subject to a condition which is not shown to have been fulfilled and is, therefore, ineffective. I, therefore, concur in the order proposed. Venkatasubba Rao, J.

(2.) This is an appeal from an order of the Subordinate Judge of Rajahmundary allowing execution against the fourth defendant at the instance of the husband of the plaintiff who claimed to be the plaintiff's legal representative. The fourth defendant was directed by the decree to pay to the plaintiff a sum of Rs. 385-4-0 as mesne profits in respect of some property. The plaintiff's husband applied for execution in respect of this sum of money. The fourth defendant objected to execution on the ground that under the same decree, the plaintiff was directed to pay him Rs. 2,000 with interest at 12 per cent, from a certain date and that the amount due to him being much larger than the sum payable by him, the plaintiff's representative was not entitled to take out execution for the smaller sum. The Subordinate Judge overruled this contention and the fourth defendant is the appellant before us.

(3.) The respondent, the plaintiff's husband, has sought to support the judgment of the lower Court on the ground that the decree was obtained by the plaintiff in respect of certain properties which she claimed as the heir of her mother; that the amount payable to the fourth defendant under the decree was payable by the plaintiff as representing the estate of her mother; that the amount which the plaintiff was to get from the fourth defendant was her stridhanam property; that the respondent, as her husband, inherited that property, and that he was, therefore, entitled to recover by execution the sum which the plaintiff was to get under the decree without reference to the amount which the plaintiff was directed to pay to the fourth defendant. It was further argued that the first defendant in the suit, who was the brother of the plaintiff, became the plaintiff's representative in respect of her mother's estate and that the first defendant, was, therefore, liable to pay the amount which the plaintiff was decreed to pay to the fourth defendant. In short, the argument on behalf of the respondent was that the fourth defendant was bound to pay him Rs. 385-4-0 and the fourth defendant's remedy in respect of Rs. 2,060, and interest thereupon lay against the first defendant.