KOTTAPALLI NARASAMMA Vs. VADULA VENKATESWARARAO, SON OF RAMAKRISHNAMMA

JUDGEMENT

(1.) This is an appeal from an order of the Subordinate Judge of Ellore, confirming the decision of the District Munsiff of Kovur in E.P. No. 473 of 1937. That execution petition was filed for the purpose of recovering certain mesne profits decreed to the appellant in O.S. No. 5 of 1931 on the file of the Sub-Court of Ellore. The appellant obtained the decree now sought to be executed in the said suit which she had instituted for the purpose of setting aside a certain alienation made by her mother as her guardian. With regard to two items reliefs were granted to her. The decree contains the following directions: (1) It is ordered and decreed that the alienation under Ex. XVI of item 2 of the property in the A schedule hereto attached be and the same hereby is set aside and the plaintiff do recover from the defendants 1 to 10 the said item 2 of the A schedule property with the past profits at the rate of Rs. 60 a year, for the years 1926, 1927 and 1928 and subsequent profits at the same rate until delivery of possession or the relinquishment of possession by the defendants with notice to the decree-holder through Court or the expiration of three years from this date, whichever event first occurs; on condition that the plaintiff should pay defendants 1 to 10 a sum of Rs. 339 within three months from this date; (2) It is also ordered and decreed that the plaintiff's claim as regards the first item of the schedule property be and the same hereby is dismissed and that the defendants 1 to 10 pay the plaintiff the sum of Rs. 301 within three months from this date.

(2.) From this decree there was an appeal to this Court which resulted in a modification to this extent, namely, that the figure Rs. 350-1-0 was substituted for Rs. 339 in the decree of the Sub-Court, also a further period of three months was granted to the parties to make the payments directed by the decree. If the arithmetic of the matter is taken into account it will be found as a result of the decree as modified, that the appellant was on the date of the decree entitled to recover from the defendants Rs. 575-10-11, against Rs. 551-5-0 which she had herself to pay to them. In other words the appellant was entitled to recover a sum of Rs. 24- 5-11 after setting off the amount due by herself to the defendants. On the 3 July, 1936, an application was made by the decree-holder for a transfer of the decree for execution to the Court of the Subordinate Judge of Narasapur, and the decree was accordingly transferred. On the 15 September, 1936, E.P. No. 145 of 1936 was filed in the Court of the Subordinate Judge at Narasapur for obtaining delivery of possession of. item 2 mentioned in the decree and for recovery of mesne profits. On the 8 October, 1936, an order was made on this execution petition, but without notice to the defendants directing delivery of possession as prayed for, and it is common ground that possession was accordingly delivered. The present execution petition was filed on the 7 December, 1937, and the decree-holder prayed that the properties of the defendants may be attached and out of the proceeds of the sale thereof she may be paid a sum of Rs. 550-15-0 due to her for mesne profits besides another sum of Rs. 73-6-11 claimed as the amount of costs due to her. The execution petition has been dismissed by the District Munsiff of Kovur in whose Court it was filed, substantially on the ground that the appellant has forfeited her right to execute the decree for recovery of possession of the property by reason of her omission to pay the sum of Rs. 350-1-0 within the period of three months limited by the appellate decree.

(3.) It is not disputed that the money was not paid within time. The contention however of the appellant is that in view of the fact that a larger sum of money was owing to her she was under no obligation to pay any amount into Court at all as the claims have to be set off one against the other. It is true that in terms the decree has not directed the set off. It is also true that the language employed conveys the idea that the appellant should pay the money as a condition precedent to her obtaining delivery of possession. But we are of opinion that in view of the directions contained in the decree it could never have been the intention of the appellate Court to place the appellant under a liability to pay the amount within the period mentioned, while she herself was entitled to recover a larger sum from the defendants.