SHIDDAPPA IRAPPA DUBALGUNDI Vs. REVAPPA SOMAPPA SAJJAN

JUDGEMENT

(1.) The question in this appeal is, whether the decree in appeal No. 4 of 1924 of the District Court of Bijapur was a nullity as the judgment-debtor the defendant- respondent contended. The trial Court held that it was not a nullity and dismissed the respondent's objection. In appeal by the defendant judgment-debtor the District Court allowed the appeal and dismissed the darkhast with costs, The plaintiff decree-holder appeals.

(2.) One Irappa Dubalgundi who had a son, the minor Shiddappa, owned two shops, one at Bijapur which went by his own name, and the other at Talikot which went by the name of the minor. The respondent-defendant judgment-debtor passed a khata to the Talikot shop, which bore the name of the minor. Irappa died leaving a will and appointing three executors among whom one was Raghavji Nathuram and another Rao Saheb Shivlinga Jagdev Deshmukh. After his deathsuit No. 173 of 1922 was instituted against the respondent in the Subordinate Court at Bijapur and ended in a decree against the respondent. Being dissatisfied with the amount the plaintiff appealed. During the pendency of the appeal Raghavji Nathuram died. The appeal was allowed and the decretal amount increased.

(3.) The only question of fact on which the present appeal turns is, whether the plaintiff in suit 178 of 1922 and the appellant in the appeal No. 4 of 1924 was the minor Shiddappa or whether it was Raghavji Nathuram as the executor of Irappa's will. The precise title on the plaint and on the appeal was "Shiddappa Irappa Dubalgundi's shop, owner Shiddappa Irappa, minor by his executor Raghavji Nathuram." On this question each party relies on certain documents in-suit and in appeal. It ia also conceded that after the appellate decree on June 29, 1925, an application was made by the appellant's pleader on July 13, 1925, bringing the fact of Raghavji's death to the notice of the District Court and asking that in place of Raghavji Nathuram Rao Saheb Shivlingrao Jagdevrao Deshmukh, another executor, should be appointed as the next friend and the appeal should be taken back on the file and re-heard. To that application an objection was taken orally for the respondent and the District Court on November 24, 1925, thought it unnecessary to grant the application, its reason being as follows: "As the minor appellant's interests are not prejudiced by the decree as it stands, I see no reason to reopen the appeal only for the irregularity mentioned and I reject the application with costs." The only other relevant fact not very material is that in the original plaint instead of the words "owner Shiddappa Irappa" the words were "owner Irappa." The defendant took an objection, Exhibit 16. The plaintiff filed a counter-written statement, Exhibit 20, and an application, Exhibit 12, to make the correction to its present form "Shidappa Irappa."