Research › Search › Judgment

Andhra High Court · body

2006 DIGILAW 729 (AP)

A. Chandraiah v. A. Chandramouli

2006-06-28

C.Y.SOMAYAJULU

body2006
ORDER Third respondent filed a suit for recovery of money against the revision petitioner and respondents 1 and 2 on the basis of four promissory notes executed by A. Narasappa alleging that the revision petitioner and respondents 1 and 2, who are in possession of the estate of the said Narasappa, have to discharge the amount due to her from out of the estate of Narasappa in their/hands. After contest by the revision petitioner, the said suit was decreed directing the defendants therein to pay the suit amount from out of the estate of Narasappa in their hands i.e., in the hands of revision petitioner and respondents 1 and 2. In execution of that decree, third respondent filed E.P. for attachment and sale of a house property in Kurnool City, in which revision petitioner filed a counter at the stage when sale proclamation was issued alleging that A. Nagappa, who is described as owner of the property brought to sale, is neither the judgment debtor nor defendant in the suit and so that property cannot be sold and that Narasappa begot three sons A. Nagappa, A. Papaiah and A. Chandraiah i.e., himself (revision petitioner) and as both his brothers Nagappa, Papaiah died, the property of his father devolved on him by survivorship and so he became absolutely entitled to the property of his father and since the decree is passed against the estate of Nagappa and since Nagappa did not leave behind any estate, decree holder cannot proceed against the property mentioned in the E.P. Schedule. In O.S.No.462 of 1999filed by him for declaration against respondents 1 and 2, third respondent got herself impleaded as third defendant and in the written statement filed by her in that suit she did not take a plea that the E.P. schedule property belongs to Nagappa and in any event since second appeal against the decree under execution is pending, the E.P. is liable to be dismissed. No oral or documentary evidence was adduced by the third respondent. On his behalf revision petitioner examined A. Lingaiah as RW.1. Holding that the objection of the revision petitioner after receipt of notice under Order21 Rule66C.P.C.cannotbeentertained, the executing Court ordered further steps in the E.P. by the order under revision. Hence this revision. 2. No oral or documentary evidence was adduced by the third respondent. On his behalf revision petitioner examined A. Lingaiah as RW.1. Holding that the objection of the revision petitioner after receipt of notice under Order21 Rule66C.P.C.cannotbeentertained, the executing Court ordered further steps in the E.P. by the order under revision. Hence this revision. 2. The main contention of the learned counsel for the revision petitioner is that since there is no personal decree against the revision petitioner and as the decree is against the estate of Nagappa in the hands of the revision petitioner and respondents 1 and 2, and since the E.P. schedule property was not the property of the deceased executant of the promissory notes covered by the suit and as it belonged to the father of the revision petitioner, who relinquished his interest therein in favour of the revision petitioner, third respondent has no right to proceed against the said property. It is also his contention that as this respondent, who got herself impleaded as a party to O.S.No.462 of 1999 filed by the revision petitioner seeking declaration of his right and title and for perpetual injunction in respect of certain other properties did not plead that the E.P. Schedule property is a property left behind by Nagappa, it is clear that the property sought to be proceeded against did not belong to Nagappa, and so, the order under revision is unsustainable. 3. The contention of the learned counsel for third respondent is that as there is no evidence in record to show father of the revision petitioner relinquished his rights in the E.P. schedule property in favour of the revision petitioner and since third respondent not making a reference to the E. P. schedule property in the written statement filed by her in O.S.No.462 of 1999 has no consequence, the executing Court rightly overrule the objection of the revision petitioner. 4. Since revision petitioner did not adduce any evidence to show that his father was the owner of the E.P. schedule property and that he relinquished his rights therein in his favour, the contention that revision petitioner is the absolute owner of the E.P. schedule property cannot be accepted. Revision petitioner, admittedly is the son of Narasappa. 4. Since revision petitioner did not adduce any evidence to show that his father was the owner of the E.P. schedule property and that he relinquished his rights therein in his favour, the contention that revision petitioner is the absolute owner of the E.P. schedule property cannot be accepted. Revision petitioner, admittedly is the son of Narasappa. From the material papers filed by the revision petitioner, it is seen that there is an error in the later portion of the decree sought to be executed by the third respondent. The preamble of decree dated 20-02-2004 shows that the suit is for recovery of Rs.1,37,600/-being the principal and interest due .on four promissory notes executed by late A. Narasappa in favour of the plaintiff for Rs. 20,000/- each. But in Clause (i) of the decree, it is stated that that amount has to be realized from the estate of the deceased Nagappa, in the hands of the defendants. So as rightly observed by the executing Court revision petitioner is only trying to take advantage of the typographical error in the operative portion of the decree and is trying to contend that Nagappa did not have any property. Third respondent not taking steps to get the decree amended, to bring the operative portion thereof in consonance with the preamble by getting the name of Nagappa amended as Narsappa, is not of consequence because a decree has to be read along with the judgment and since a reading of the judgment shows that the suit is for recovery of the money from the estate of Narasappa in the hands of the defendants who are the sons of Narasappa and since the revision petitioner admittedly is the son of Narasappa and is in possession of the property of Narasappa and so I find no tenable objection for the revision petitioner resisting the execution of the decree. 5. O.S.No.462 of 1999 filed by the revision petitioner is for declaration of his title to certain properties covered by that suit. 5. O.S.No.462 of 1999 filed by the revision petitioner is for declaration of his title to certain properties covered by that suit. Merely because third respondent, who got herself impleaded as a party to that suit, in the written statement filed by her in that suit did not state that the E.P. schedule property belongs to his father, would not be a bar for the third respondent proceeding against the E.P. schedule property in execution of the decree obtained by her against the revision petitioner and others because there was no need for her to refer the existence of the E.P. schedule property in her written statement in a suit for declaration of title by the revision petitioner in respect of some other properties. 6. The contention of the learned counsel for the revision petitioner is· since third respondent also is claiming to be an heir to the estate of Narasappa, the deceased executant of the promissory notes, which are the subject matter of the suit covered by the decree under execution, question of her executing the decree against the estate of the deceased does not rise. I am unable to agree with the said contention. Merely because a decree holder creditor becomes an heir to the estate of the deceased judgment-debtor, the decree debt would not be wiped out. In such case, the estate of the deceased judgment debtor will have to be shared by the decree holder heir and the other heirs of the deceased judgment debtor only after making a provision for discharge of the debt due to the decree holder creditor. In case the third respondent is the only heir to the estate of the deceased executant Narsappa, question of her recovering the decree debt does not arise. Therefore, the estate left over after full satisfaction of the decree in execution, only can be shared by the heirs of Narsappa. So third respondent claiming a share in the property of the deceased Narsappa is of no consequence in the E.P. 7. Therefore, I find no merits in this-revision and hence, the Civil Revision Petition is dismissed with costs.