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2011 DIGILAW 992 (AP)

P. K. Doraiswamy v. Mungamuru Haragopala Reddy

2011-11-14

L.NARASIMHA REDDY

body2011
Judgment : 1. The appellants herein filed O.S.No.144 of 1989 in the Court of the Principal District Munsif, Kovur, against one Mungamuru Radhakrishna Reddy, father of 1st respondent, for the relief of perpetual injunction.It is stated that a compromise was entered into between the parties and decree in terms of compromise was drawn.The compromise decree provided inter alia for payment of Rs.64,000/- by the said Radhakrishna Reddy, to enable him to remain in possession of the suit schedule property till the end of August 1990.Pleading that he paid only a sum of Rs.32,000/- as against Rs.64,000/- by the time he was evicted from the premises in August 1990, the appellants filed O.S No.72 of 1992 in the Court of the Senior Civil Judge, Kovur, against Radhakrishna Reddy, for recovery of a sum of Rs.40,474/- comprising of principal amount of Rs.32,000/- and interest thereon.The suit was opposed by raising several grounds.During the pendency of the suit, said Radhakrishna died and the respondents herein have brought on record as his legal representatives.The trial Court decreed the suit on 07-09-1998. 2. The respondents filed A.S.No.80 of 1998 in the Court of the IV Additional District Judge, Nellore.The appeal was allowed vide judgment, dated 08-08-2003.Hence, this Second Appeal. 3. Heard Sri Ch.Janardhana Reddy, learned counsel for the appellants and Sri Ch.C.Krishna Reddy, learned counsel for the respondents. 4. The suit was filed for recovery of amount on the strength of a compromise decree in O.S.No.144 of 1989, marked as Ex.A-1.The trial Court framed the following issues for its consideration: “1) Whether the defendant is not liable to pay the last installment of Rs.32,000/- as per the compromise decree in O.S.No.144/89 on the file of the Principal District Munsif’s Court, Kovur? 2) Whether the defendant delivered the possession of the plaint schedule property to the defendant on 14.9.89 and thereafter he did not enjoy the usufruct in the plaint schedule property?” 5. On behalf of the appellants, PW-1 was examined and Ex.A-1 was filed.On behalf of the respondents, DW-1 was examined and Exs.B-1 and B-2 were filed.The suit was decreed.The lower appellate Court framed only one point for its consideration, viz., the judgment and decree passed by the trial Court suffers from infirmity and illegality; and allowed the appeal. 6. On behalf of the appellants, PW-1 was examined and Ex.A-1 was filed.On behalf of the respondents, DW-1 was examined and Exs.B-1 and B-2 were filed.The suit was decreed.The lower appellate Court framed only one point for its consideration, viz., the judgment and decree passed by the trial Court suffers from infirmity and illegality; and allowed the appeal. 6. The principal ground on which the trial Court decreed the suit was that there existed a decree that provided for payment of the amount that the same was not paid. The lower appellate Court, on the other hand, found that Ex.A-1 is inadmissible in evidence since it was not registered as required under law.Reliance was placed upon a judgment of Supreme Court. 7. Apart from the ground on which the lower appellate Court has set aside the decree, this Court finds a serious flaw in the entire proceedings.The sole basis for the appellants to seek recovery of amount is a decree passed in another suit.Whether it is a compromise decree or the one passed on contest, the only way that a decree can be enforced is by instituting the execution proceedings under Order – XXI CPC.Section 47 CPC prohibits institution of an independent suit or other proceedings in relation to the execution or satisfaction of a decree.This important aspect, however, was not considered by the trial Court or the lower appellate Court.The suit filed by the appellant was not at all maintainable.This does not find any basis to interfere with the judgment and decree passed by the lower appellate Court. 8. Hence, the Second Appeal is dismissed.There shall be no order as to costs.