LAWS(PVC)-1937-10-11

GUNDLA VENKAMMA Vs. RAO SAHIB KOTLA SANYASAYYA

Decided On October 22, 1937
GUNDLA VENKAMMA Appellant
V/S
RAO SAHIB KOTLA SANYASAYYA Respondents

JUDGEMENT

(1.) This is an appeal from the decree of the Agency Subordinate Judge of Vizagapatam dismissing the suit of the plaintiff for recovery of a Burn of money on the basis of a security bond dated 18 January 1909 in favour of the husband of the plaintiff in O.S. No. 1 of 1907 on the file of the Court of the Government Agent, Godavari, Coconada. The said bond was executed under the following circumstances.

(2.) One Joga Venkataswami had dealings with the plaintiff's husband and he died in 1905 without having the account in respect of the said dealings settled. On the date of his death two persons claimed his property; one is his adopted son Joga Ramulu and the other Joga Sitaramulu, who is alleged to be his natural son. But the matters in dispute between these parties appear to have been settled by an arrangement in and by which each took half the property left by Joga Venkataswami. The plaintiff's husband filed a suit (O.S. No. 1 of 1907) against both Joga Ramulu and Joga Sitaramulu and one Joga Achamma, the widow of Joga Venkataswami, for an account in respect of the dealings had with the said Joga Venkataswami and for recovery of a sum of Rs. 11,000 odd which according to the plaintiff would be found due on a taking of the said account. By an order dated 13 July 1907, Joga Achamma was exonerated from the suit as not being a necessary party. Immediately after the institution of the suit, Joga Ramulu died and his widow Joga Kondamma was brought on record as his legal representative. After Kondamma was brought on record, the plaintiff's husband filed an application for an injunction restraining the defendants on record from alienating certain property and the Court passed an order that if the defendants were to give proper security, injunction would not be granted and that the temporary injunction which was granted on the said application would be dissolved. The present defendant offered himself as security for the claim in O.S. No. 1 of 1907 and the Court on the strength of the security bond executed by him seemed to have discharged the injunction. The security bond was executed on 18th January 1909 and the material terms of the bond run thus: The plaintiff having accepted my personal security, I hereby agree and bind myself to pay to the plaintiff or his legal representatives and assignees any amount that may be decreed in his favour in the said suit against the defendants in case the same is not recovered from the defendants.

(3.) It will be noticed that the defendants referred to therein are Joga Kondamma and Joga Sitaramulu. Sometime after the said order, the plaintiff in the said suit, that is the plaintiff's husband, entered into a compromise with only Joga Sitaramulu as a result of which Joga Sitaramulu suffered a decree to be passed against him for the amount claimed in the plaint, without reference to Joga Kondamma who was contesting the claim. A preliminary decree was passed in that suit directing an account to be taken so far as defendants other than Joga Sitaramulu were concerned, i.e. defendant 4, Joga Kondamma. The Commissioner, who was appointed in that suit, submitted his report showing that instead of the defendants owing anything to the plaintiff, the plaintiff would be indebted to the defendants in the sum of over Rs. 3000. Objections were filed to the Commissioner's report and before the final decree was passed, the plaintiff's husband died. Nothing seems to have been done for three years after his death and on objection being taken by Kondamma, the suit was dismissed as against her so that no decree was passed against Kondamma in respect of the suit claim. This plaintiff however brought herself on record and executed the compromise decree against Joga Sitaramulu and his property.