Research › Browse › Judgment

Karnataka High Court · body

1988 DIGILAW 352 (KAR)

M. RAMACHANDRA GOWDA v. GANGADARA GOWDA

1988-08-11

M.P.CHANDRAKANTARAJ

body1988
CHANDRAKANTHARAJ, J. ( 1 ) THIS is a judgment-debtors revision petition under Section 115 of the C. P. C. directed against the order dated 30-7- 1988 made by the Munsiff, Sullia, in Ex. Case No. 61/1986. The execution was for mesne profits under final decree proceedings in O. S. No. 70/1973. That suit was one for partition and separate possession of the share of the suit schedule properties filed by the plaintiff against three defendants. During the final decree proceedings, the 1st defendant-Hukrappa gowda died and his legal representatives, the present revision petitioners, were brought on record. Under the final decree proceedings, the plaintiff was allotted S. No. 201/7a, 201/2b, 203/2a, 286/3a along with the house situated in S. No. 201/7a while the respondents ware allotted S. No. 201a. There was a further direction that past mesne profits in the sum of Rs. 320/- be paid to the plaintiff who was the first petitioner in the final decree proceedings. It was further directed that current and future mesne profits be determined at the rate of 3/4 candy of areca and 200 cocoanuts per annum from 24-8-1965 till date of delivery of possession of the properties allotted to the share of plaintiff. ( 2 ) THE execution Petition No. 61/1986 was taken out in the middle of 1986 after obtaining possession of the properties allotted to the plaintiff from the defendants. Therefore, execution was only in respect of the past and current mesne profits. In regard to past mesne profits, there was no dispute as it was quantified in the specified sum of rs. 320/ -. In regard to the current and future mesne profits as specified in the final decree judgment-debtors appears to have raised two objections in the execution proceedings. They were: (1) that the Court could not proceed to grant execution in respect of current mesne profits beyond three years from the date of decree having regard to what is said in Order XX of Rule 12 (c)of the C. P. C; (2) that the judgment-debtors contend that they were only liable to the mesne profits to the extent their parent was liable and the same should be realised only from what was allotted to the original 1st defendant and not from out of other properties owned by them, the legal representatives. ( 3 ) BOTH the contentions have been negatived by the executing Court and therefore the present revision petition by the petitioners. ( 4 ) THE first contention is to be stated only to be rejected. To the facts of the present case, Order XX Rule 12 (c) of the C. P. C. is not attracted. The final decree itself was passed in 1976 directing payment of current and future mesne profits from a specified date till date of delivery of possession of the properties allotted to the plaintiff. In any event the argument founded on the provision of Order XX Rule 12 (c) of C. P. C. has become conclusive. That was an appealable decree and having not preferred any appeal the decree is binding on the parties. It is not open to the judgment-debtors to reopen the final decree proceedings. In fact, for the reasons I propose to give in meeting the next contention, the defence set up becomes totally irrelevant. The learned Judge executing the decree was correct in his conclusion that he could not go behind the decree and that his duty was only to implement the decree as it was drawn. Therefore, the contention is bound to be rejected. ( 5 ) IT is not in dispute that the original 1st defendant had passed away and the present petitioners and defendants 2 and 3 continued in possession of all the suit properties till they delivered possession in 1986 of some of those properties which went to the share of the plaintiff. The income derived from the entire family properties were enjoyed by them along with the family properties which fell to their share. Therefore, they cannot now contend that they are not liable for more than the share which fell to the share of the 1st defendant. If they cannot, then their liability is personal in as much as the decree is passed against them in the final decree proceedings. They are liable to make good all the income they have derived from the properties which fell to the share of the plaintiff-decree-holder in terms of the decree. Therefore, the plea based on Sections 50 and 52 of the C. P. C. has no basis whatsoever. ( 6 ) THE conclusions reached by the executing court is correct and do not call for interference. Accordingly, this revision petition is rejected. --- *** --- .