A K GOVINDARAJULU NAIDU Vs. LAKLAKSHMANA AIYAR FIRM

JUDGEMENT

(1.) The appellant is the judgment-debtor in O.S. No. 141 of 1932 wherein a sum exceeding Rs. 12,000 was decreed by the learned Subordinate Judge of Trichinopoly on the 31 August, 1933. In execution of the decree the decree- holder instituted E.P. No. 392 of 1934 for sale of certain properties belonging to the judgment-debtor, which had been attached pending suit. Sale was ordered and on the 20 November, 1935, the decree-holder became the purchaser. The sale was confirmed on 27 July, 1936 and part satisfaction of the decree was recorded in respect of the net sale proceeds. Two of the items of property sold were houses Nos. 9 and 10, Sayakara Street, Trichinopoly. In order to obtain possession, the decree-holder instituted E.A. No. 857 of 1936 and possession was ordered. When the Amin went to give delivery to the decree-holder, on 12 November, 1936, obstruction was offered by one Ayyammal, the widow of the judgment-debtor's brother. She claimed right of residence during her life-time in both the properties, Nos. 9 and 10. Thereupon the decree-holder filed E.A. No. 983 of 1936 on 4th December, 1946, to remove the obstruction pursuant to Order 21, Rule 97. On 31 August, 1937, the Court found in favour of the obstructor, so far as No. 9 was concerned, being satisfied that she was entitled during her lifetime to residence in that house. Her claim regarding house No. 10 was rejected. In the course of the order it was observed by the Court that the decree-holder was directed to establish his right by a separate suit. On 31 August, 1937, E.A. No. 857 of 1936 came up for consideration, when delivery of possession of house No. 10 was ordered and the matter was adjourned until 2nd October, 1937, to enable delivery to be given. The B diary in respect of E.A. No. 857 of 1936 contains an endorsement including " vide order in E.A. No. 983 of 1936 ". The decree-holder was duly put in possession of No. 10. On the 2nd October, E.A. No. 857 of 1936 again came before the Court and an order was made which was endorsed upon the application, as follows: House bearing door No. 10 delivered. Recorded.

(2.) Thereafter the decree-holder, by other execution applications, sought to obtain the fruits of his decree, so far as they were unsatisfied by the proceeds of the sale arising out of E.P. No. 392 of 1934, but he was unsuccessful. The last of those applications was dismissed on 30 January, 1942. On 23 June, 1945, the decree-holder instituted E.A. No. 411 of 1945. That was more than three years after the dismissal and final disposal of the last execution application and about eight years after E.A. No. 857 of 1936 had last been before the Court. By E.A. No. 411 of 1945 it was sought to continue, or to revive, E.A. No. 857 of 1936 on the ground that it had never been finally disposed of and was still pending and to obtain symboli-cal possession of house No. 9, that in which the widow of the judgment-debtor's brother had right of residence, it being appreciated that during her lifetime actual possession could not be obtained. Symbolical possession of house No. 9 had not been directed on the last occasion when E.A. No. 857 of 1936 was before the Court. No notice was given to the judgment-debtor of E.A. No. 411 of 1945 and the Court directed symbolical possession of house No. 9 on 5 July, 1945 and which was given on 31 July. The present matters coming before us are C.M.A. Nos. 115 of 1946 and C.R.P. No. 1474 of 1945, instituted by the judgment- debtor challenging the correctness of the order made on 5 July, 1945, in E.A. No. 411 of 1945.

(3.) Learned Counsel for the appellant judgment-debtor, first contended that, since the decree-holder had instituted other execution applications between 1937 and 1945, it must be deemed that he has abandoned any rights, which otherwise he might have, with regard to E.A. No. 857 of 1936 as he sought execution against other properties belonging to judgment-debtor.