MULLAPUDI SOORANNA Vs. MULLAPUDI VENKANNA

JUDGEMENT

(1.) The question in this case is whether the application for execution, out of which this appeal arises, is barred by limitation. The learned District Munsiff has held that it is barred while the learned Subordinate Judge has taken a different view.

(2.) The plaintiff obtained a money decree against defendants 2 to 4 in O.S. No. 913 of 1926 on the file of the District Munsiff's Court of Kovvur on the 25th February, 1928. He then made an application (E.P. No. 730 of 1928) for execution of the decree by attachment of the movable property of the defendants. Defendants 3 and 4 preferred an appeal A.S. No. 375 of 1928 on the file of the Sub-Court, Ellore, and applied for stay of execution of the decree. By order dated 16 October, 1928, the learned District Judge, before whom the appeal was pending, directed the defendants to deposit the amount into Court and ordered that the amount of the decree may be paid to the plaintiff on his furnishing security to the satisfaction of the District Munsiff, but if the amount was not deposited, the execution of the decree may go on. In pursuance of this order defendants 3 and 4 deposited the decree amount into Court. The plaintiff then drew the amount on executing a security bond in favour of the District Munsiff of Kovvur in and by which he undertook as follows: As it has been ordered that I should furnish security, I stand surety for Rs. 585-6-6, out of my free will and I have mortgaged therefor my immovable property mentioned in the schedule hereunder. If the decree of the lower Court be reversed or modified in the appellate Court, I hereby agree that I shall be liable to give away in execution of the said decree, any property which I have taken, to take out proceedings properly and conduct the same, according to the appellate decree, to pay any amount, if any, payable by me under the said appellate decree, that on failure to do so, you are at liberty to recover the entire amount, that may be found payable by me by means of this mortgage property, if the amount realised by sale of the mortgage property is not sufficient for the amount payable by me, I, my heirs and my representatives shall be liable to pay the balance on our personal liability and by means of our other properties and I have executed this security bond. I have retained the said property in my possession.

(3.) After the execution of the security bond the plaintiff received the said amount and thereupon an order of satisfaction of the decree was made. The order was, "Enter full satisfaction. Struck off". Even though an appeal was preferred by defendants 3 and 4 the order of full satisfaction on payment of the decree amount by defendants 3 and 4 enured also to the benefit of the second defendant because on that date the decree was a joint and several one and the payment by any one of them would operate as a satisfaction of the entire decree. On 21 October, 1929, the appeal of defendants 3 and 4 was allowed. They were exonerated without costs of the lower Court and the decree against the second defendant was confirmed. The operative portion of the decree ran thus: This Court doth in modification of the decree of the lower Court order and decree that the plaintiff (first respondent) do recover from second defendant (third respondent) alone the sum of Rs. 398-2-9, with interest thereon at 12 per cent, per annum from date of the plaint (2nd December, 1925) till date of decree of the lower Court (25 February, 1928) and further interest on the aggregate sum at six per cent, per annum from 25 February, 1928, till date of payment and do also recover Rs. 88-3-0 being the costs of the lower Court. This Court doth further order and decree that appellants (defendants 2 and 4) be hereby exonerated without costs of the lower Court and that each party do bear his own costs of the appeal.