LAWS(PVC)-1925-1-82

RAMASWAMI NAIDU Vs. KNSSUBBARAYA TEVAR

Decided On January 05, 1925
RAMASWAMI NAIDU Appellant
V/S
KNSSUBBARAYA TEVAR Respondents

JUDGEMENT

(1.) This Civil Miscellaneous Appeal arises in connection with the execution of a razinama decree passed in O.S. No. 80 of 1918 on the file of the Court of the Subordinate Judge of Tanjore. The appellant is the 1 defendant in the suit. The 1 respondent is the assignee decree-holder and the other respondents are the remaining 3 defendants in O.S. No. 80 of 1918 who are the sons of the 1st defendant and the. plaintiff the decree-holder. The compromise decree was assigned by the next friend of the plaintiff, decree-holder to the present 1st respondent and he presented E.P. No. 4 of 1923 praying for the recognition of the assignment and for the recovery of the amount of Rs. 58,235-12-0 by the sale of the properties as per terms of the decree. The defendants in the suit opposed the application. The Subordinate Judge passed an order recognising the assignment subject to certain conditions and also allowing the execution of the decree. It is this order that is now appealed against by the 1 defendant-appellant.

(2.) In order to understand the contentions put forward on his behalf it is necessary to state the facts relating to the compromise decree, in detail. O.S. No. 80 of 1918 on the file of the Court of the Subordinate Judge of Tanjore on which the razinama decree was passed was instituted by the minor plaintiff Kamachia Pillai represented by his adoptive mother for specific performance of contract by the present appellant and his sons, defendants 1 to 4, in pursuance of the agreement dated 5 December, 1915, or for recovery of the amount of advance together with interest thereto, i.e., for Rs. 25,586-1-10. At that time there were two suits pending on the file of the Court of the Subordinate Judge of Tanjore in which the present parties were interested and also there was a decree in existence against the late adoptive father of the minor plaintiff passed by the Trichinopoly Sub-Court. One of these suits, viz., O.S. No. 82 of 1918 was instituted by one Natesa Pillai who had obtained an assignment benami of a promissory note alleged to have been executed by the 1 defendant (the present appellant) in the name of one Chockalingam, the father of the adoptive mother and next friend of the minor plaintiff in O.S. No. 80 of 1918. O.S. No. 83 of 1918, the other suit, was instituted by the minor plaintiff in O.S. No. 80 of 1918 for recovery of the amount due under the three other deeds executed for Rs. 35,000 by the defendants in O.S. No. 80 of 1918 and the deceased Varadarajulu Naidu in favour of the adoptive father of the minor plaintiff and for delivery of possession in accordance with the aforesaid other deeds and for recovery of swamibogam. The decree against the late adoptive father of the minor plaintiff was passed by the Trichinopoly Subordinate Court in Q. S. No. 98 of 1918 on its file. It was passed on promissory notes which had been executed by him. Besides compromising the present suit, namely, O.S. No. 80 of 1918, it was arranged by the razinama that the minor plaintiff should cause the heirs of Natesa Pillai not to prosecute the suit O.S. No. 82 of 1918 and that he should withdraw the suit O.S. No. 83 of 1918. The defendants in consideration of the compromise of these suits agreed to pay to the plaintiff (a) Rs. 53,000 in quit of all claims and that out of the sum of Rs. 53,000 they agreed to execute in favour of the minor plaintiff a promissory note for Rs. 3,000 with interest and out of the balance pay Palaniappa Chetty the decree- holder in O.S. No. 9 8 of 1918 mentioned above and thus discharge his claim against the adoptive father of the plaintiff within a specified period. It was stated in the compromise that if the. defendants in this suit (O.S.No. 80 of 1918) make any default in paying the said amount within the stipulated period aforesaid, the plaintiff is to proceed against the suit properties and to execute the razinama decree that may be passed in the suit, and to bell the properties and recover the amount with costs of execution. The last paragraph of the compromise contains the provision that the parties in this suit and in Suit No. 83 of 1918 are to bear themselves their respective costs. On these terms O.S. No. 80 of 1918 was adjusted by the razinama and a decree was passed in accordance therewith so far as it related to the suit.

(3.) The defendants in O.S. No. 80 of 1918 (the appellant and his sons, respondents 2, 3 and 4) not having complied with their obligation in accordance with the razinama decree to pay up the amount due under the decree in O.S. No. 98 of 1918 it was apprehended by the adoptive mother of the plaintiff that the properties of the minor would be brought to sale in execution of that decree unless some arrangement was made for assigning the razinama decree in O.S. No. 80 of 1918, and discharging the debts due to Palaniappa Chetty in O.S. No. 98 of 1918. For the purpose of safeguarding the interest of the minor an assignment of the razinama decree was therefore made in favour of the present 1 respondent for a consideration of Rs. 55,000. It is not here necessary to go into details of the considerations and the obligations which the assignee decree-holder undertook under the assignment. As already mentioned, E.P. No. 4 of 1923 was filed by the assignee decree-holder for recognising the assignment and for executing the razinama decree.