NAKKA APPALA NAIDU Vs. NAKKA LATCHU NAIDU

JUDGEMENT

(1.) The point by Mr. Dikshitulu, novel and interesting as it is and bereft of any direct authority in our Courts, did seem at first blush to be one of substance, but on a careful and critical examination, did not appear to be a difficult one. On the 18 March, 1947, my learned brother Yahya Ali, J., in C.M.P. No. 88 of 1947 (S.A. No. 1809 of 1946) made the following Order : Interim stay of the passing of final decree is made absolute on condition that petitioner furnishes security ot the satisfaction of trail Court for the sum of Rule 1, 200 towards mesne profits within eight weeks.

(2.) The trail Court was the District Munsiff of Chicacole. In pursuance of this order the petitioner in C.M.P. No. 88 of 1947 offered a half share of the properties involved in the second appeal as security for the said sum of Rs. 1,200. The sufficiency of this was objected to by opposite party but the learned District Munsiff after ascertaining the value of the property and considering the objections raised as regards sufficiency, found that the share of the party offering security, in the wet lands itself, was worth about Rs. 1,700 and accepted the security as sufficient and satisfactory. Thereupon, the respondent in second appeal who was also the 11 respondent in C.M.P. No. 88 of 1947 feeling aggrieved by the order of the District. Munsiff accepting the security, has moved this Court by this petition to direct the appellant to furnish additional security for the sum of Rs. 1,000 in order that the order of this Court in C.M.P. No. 88 of 1947 may be properly complied with. In support of this application, an affidavit by the first respondent has been filed and in it, various facts are set forth to show that the District Munsiff was wrong in accepting the security as sufficient, for the reason that the properties tendered as security would not be sufficient for any amount over Rs. 200. The allegations in this affidavit are controverted by a counter filed by the first appellant in the second appeal to which there is a rejoinder in the nature of a reply affidavit affirming and restating the objection's raised in the affidavit in support of the application.

(3.) In these circumstances the question that has been raised is whether this Court can look into the matter afresh and find out whether the order of the District Munsiff is correct on the facts and on the merits. In short, the contention raised is that as the properties tendered as security were not at all sufficient for the sum of Rs. 1,200 and if the District Munsiff had merely considered the matter, he would have perceived the patent mistake committed by him, from the circumstance that the respondent to this petition is not entitled to a half share in the entire properties but only to a half share in 4 acres 40 cents of dry lands the value of which after deducting the charge for Rs. 500 already created therein would not exceed Rs. 200.