LINGAM VEERA RAQHAVA RAO Vs. MALLAPRAGADA GURUNATHA RAO

JUDGEMENT

(1.) This is an appeal against the order of the District Court, Ganjanl in a claim petition under Order 21, Rule 58, The circumstances briefly are as follows: The plaintiff sued in 1903, for the recovery of certain lands, the chief defendant being one Subba Rao, the second defendant in the case. He got a decree which was confirmed by the High Court on appeal in 1909. He got delivery in 1911 and in 1913 he filed E.P. No. 67 of 1913, for mesne profits due under the decree. Subba Rao died while the appeal was pending and his mother was brought on record as his legal representative. She died before the execution petition was filed. In the execution petition, the brothers of Subba Rao were added as legal representatives and the father of Subba Rao, the third defendant in the suit was also made a counter-petitioner. The assets of Subba Rao, in their hands were attached. On 3 November 1914, this execution petition was struck off the file with directions to the decree holder to renew it after the appeal against the first Court's order was disposed of finally by the High Court. On 16 November 1915 the decree-holder put in another E.P. No. 59 of 1915 against the same parties. In that execution petition the brothers claimed the property as the joint family property of themselves and Subba Rao. This claim was dismissed by the District Judge and by the High Court also on 23 January 1920 and those decisions declared unequivocally that the property was Subba Rao's separate property. This execution petition was dismissed on 18 November, 1921 as the decree-holder elected to proceed with a fresh execution petition which he had filed. This was E.P. No. 16 of 1920 put in on 28 April 1920 for. the same relief against the same property and the property was attached as the property of the judgment-debtor, Subba Rao, in the hands of the counter--petitioners on 25 July 1922. To this execution application, for some reason or other, the third defendant, the father of Subba Rao, was not made a party. Taking advantage of this, he put in a claim petition against the attachment on the ground that he had had no notice. The hearing of this claim petition went on pari passu with a petition by the decree-holder to add the third defendant as a party in the execution petition. The District Judge dismissed the claim petition and added the third defendant as a party to the execution petition on 23 April 1923. Against the order dismissing the claim petition the present appeal is filed. He has not appealed or moved in revision against the order adding him as a party to the execution petition, although in the course of the hearing before us, ho contended that that order was contrary to law because the Court could not bring him on in the execution petition more than 12 years after the date of the decree. We are here, however, strictly confined to dealing with the appeal against the order on the claim petition.

(2.) Now, the High Court's judgment on 23 January 1920 made it clear to both parties that the true legal representative of Subba Rao was his father the third defendant. The third defendant does not deny that the property attached is the estate of Subba Rao in his hands and that it is liable to be proceeded against in execution for the decree amount. His claim, therefore, is not that he holds this property in any right of his own, but only as the legal representative of the judgment-debtor and the ground on which he put in his claim petition E. A. No. 166 of 1922, was not that the property was not that of the judgment-debtor and not liable for the decree, but the purely technical one that the holder of the assets of the judgment debtor had not been brought on record in the execution petition and given notice therein.

(3.) The District Judge went elaborately into the case and dismissed the claim petition on two grounds, first that the third defendant had already in a counter put in by him in E.P. No. 67 of 1913, on 18 December 1924 as guardian of two of the brothers of Subba Rao, Defendants Nos. 36 and 37, declared that he had no right to the property, and was, therefore, estopped from now putting forward the contrary; and second, that the estate of Subba Rao was sufficiently represented in the execution petition for purposes of execution by the brothers of Subba Rao even though they were not the true legal representatives.