PANDIVI SATYANANDAM Vs. PARAMKUSAM NAMMAYYA

JUDGEMENT

(1.) These appeals and O.R.P. No. 331 of 1935 arise out of orders passed by the learned District Judge of East Godavari and the Principal Subordinate Judge, Ellore, in the course of proceedings taken in execution of the decree in O.S. No. 18 of 1928 on the file of the Sub- Court Ellore. The suit was for partition of joint family property, but besides the members of the joint family, many persons were imp leaded as defendants on the allegation that they were in possession of joint family properties, moveable and immovable. On 16 September 1930, the Subordinate Judge passed a "preliminary decree", and this was transferred for execution to the District Court of East Godavari. In that Court, three applications for execution ware put in by the plaintiff and defendant 5, against defendants 40-43. The first was E.P. No. 151 of 1931 by the plaintiff, presented on 6 October 1931, in which he prayed for arrest of defendants 40-43, and for attachment and sale of their moveable and immovable properties to realize the balance due to the plaintiff under the decree of 16 September 1930. It is clear, though the papers are not before us, that in pursuance of this petition certain moveable and immovable properties were brought to sale, for, on 16 November 1931, defendant 5, (a brother of the plaintiff and defendant 1) presented E.P. No. 167 of 1931 against the same judgment-debtors, praying for attachment and sale of immovable properties, for his rateable share in the proceeds of the sale of the moveable properties attached by the plaintiff in E.P. No. 151, and for the appointment of a Commissioner to collect the entire income from the properties of the judgment-debtors. The third execution petition was E.P. No. 76 of 1934, by defendant 5 against the same judgment, debtors praying for the attachment of a sum of about Rs. 12,000, said to be in deposit in O.S. No. 62 of 1926 on the file of the Sub-Court, Rajahmundry.

(2.) The principal question for decision in these appeals is whether the decree of 16th September 1930 was executable, or whether it was a mere decree on paper, which could not be executed because it had not been engrossed on a non-judicial stamp paper. This question was not raised by defendants 40-43 till 14 March 1934, more than two years after the filing oil E. Ps. 151 and 167 of 1931. 16 was then raised in E.A. No. 77 of 1934, an application Under Section 47, Civil P.C., in which defendants 40-43 prayed for the dismissal of E.P. No. 151 of 1931 on the ground that there was not in existence a valid and legal decree engrossed on a proper non-judicial stamp paper. The learned District Judge, Mr. P.T. Jagannadhachariar, dismissed this application on 17 March 1934 in a short order: This application was apparently put in Under a misapprehension. What was transmitted to this Court to execution was the preliminary decree dated September 1930 and not the final decree. Execution has been going on from 1931. Petition dismissed.

(3.) A.A.O. No. 304 of 1934 is filed by defendants 40, 42 and 43 from this order. Having dismissed E.A. No. 77 of 1934, the District Judge ordered execution to proceed, and certain properties of defendants 40-43 were sold at Court-auction on 17 March 1934. On 6 April 1934, defendants 40-43 presented two petitions to the District Judge, E.A. Nos. 107 and E.A. No. 108 of 1934. In the first, they prayed for restoration to the file of E.A. No. 77 of 1934, and for review of the order passed thereon. In the second they applied Under Order 21, Rule 90, Civil P.C. for the getting aside of the sale. By the time these came on for hearing, Mr. P.T. Jagannadhachariar had been succeeded in the office of District Judge by Mr. P. Rajagopalan, I.C.S., who took a very different view. He allowed E.A. No. 107 of 1934 reviewed his predecessor's order and on 6 September 1934 passed an order accepting the contentions of the judgment, debtors. He held that the decree of 16 September 1930 was a final order for partition within the meaning of Section 2(15) of the Stamp Act. It followed that it could not be acted upon, i.e. executed by any Civil Court ( Section 35 of the Stamp Act). A.A.O. No. 9 of 1935 is filed by the plaintiff from this order. There are thus two appeals by opposing parties from two contradictory orders passed by two District Judges on the same petition.