AKARAPPU VENKANNA Vs. AKARAPPU CHENNAYYA

JUDGEMENT

(1.) These applications arise out of a preliminary decree passed in C.S. No. 420 of 1922, a compromise subsequent to the preliminary decree between the parties to the suit, and an order by me on an application to confirm the compromise.

(2.) The facts are shortly these: C.S. No. 420 of 1922 was filed in this Court for partition of the joint family properties belonging to the Akarappu family. A preliminary decree was passed on the 5 December, 1922. On the 25 February, 1926, the decree-holder in C.S. No. 510 of 1926 on the file of the Bombay High Court, who had got a decree against the plaintiffs in C.S. No. 420 of 1922, applied for an attachment of the preliminary decree. The decree of the Bombay High Court is dated 15 June, 1926, and is for Rs. 53,230-9-0. The execution application was transferred to this Court by an order, dated 22nd November, 1926. On the 20 December, 1926, execution was applied for in this Court by the decree-holder in the Bombay suit and the preliminary decree of this Court was attached. On the 5 July, 1928, a compromise was entered into between the plaintiffs and the defendants in C.S. No. 420 of 1922, which is embodied in a stamped document, dated 10 August, 1928. An application was made in C.S. No. 420 of 1922 for a decree in terms of the compromise, and it came on before me on the 21 September, 1928. The attaching creditor in C.S. No. 510 of 1926 (Bombay High Court) appeared before me and objected to the compromise being made a decree as he had attached the preliminary decree. I went through the whole matter in my order, dated 21 September, 1928, and stated that a final decree would not be passed unless the amount payable to the attaching creditor was paid into it and dealt with in the manner which I directed. As there is some question as to the nature of my order, I may state at once that what I have done and what the order says is that, if the parties want me to pass a final decree in terms of the compromise, that can only be done on the condition that the attaching creditor who opposes the application is paid, and in the last portion of my order this is what I say: "That the further hearing of this application for passing a final decree herein in terms of the said compromise do stand adjourned until after the defendants 1 and 2 herein pay the said amount into Court as directed in paragraph 1 above." This amount was not paid as directed. There was an appeal filed against the order and stay obtained, which stay was subsequently discharged, but the appeal is still pending. The contention for the appellants there seems to be that I should have passed an unconditional order irrespective of the attachment and any rights of the Bombay creditor thereon. That is a matter which the Appellate Court has to dispose of. After the order which I passed the plaintiff in C.S. No. 420 of 1922 was adjudicated an insolvent on the 15 October, 1928, by the District Judge of Secunderabad. On the 28 of August, 1928, the Master made an order continuing the attachment, and the attachment is still pending.

(3.) There are three applications filed by the Bombay attach-ing-creditor. The first application contains a number of alternative prayers. Prayer (a) is to direct the defendants in C.S. No. 420 of 1922 to pay into Court a sum of Rs. 63,407-4-0; prayer (b) in the alternative, why leave should not be granted to the applicant to execute the order, dated the 21 of September, 1928, passed on the application of the defendants in C.S. No. 420 of 1922; prayer (c) in the alternative, why the compromise entered into between the plaintiffs and the defendants in C.S. No. 420 of 1922 should not be made a decree of Court and why liberty should not be granted to the applicant to execute the said decree; prayer (d) in the alternative, why leave should not be given to the applicant to execute the terms contained in paragraph 8 of the preliminary decree. There are two other applications for continuing the attachment.