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Annapurana Bai Vs. F.M. Ganesh Dattatraya and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil;Property
CourtKarnataka High Court
Decided On
Case NumberEx. Second Appeal No. 65 of 1969
Judge
Reported inAIR1973Kant221; AIR1973Mys221; (1973)1MysLJ217
ActsCode of Civil Procedure (CPC) , 1908 - Sections 47
AppellantAnnapurana Bai
RespondentF.M. Ganesh Dattatraya and anr.
Appellant AdvocateK.I. Bhatta, Adv.
Respondent AdvocateT.S. Ramchandra, Adv.
DispositionAppeal dismissed
Excerpt:
.....totalling of the marks - (air 1945 bom 116). it seems to me that the said decision is clearly distinguishable on facts, and therefore, inapplicable to the facts of the present case. such a remedy, in my judgment, is clearly enforceable. such a result is clearly unwarranted in view of the law that any decree passed by a competent court having jurisdiction over the subject-matter, rightly or wrongly, must be given effect to, unless it is inexecutable on its face, es for instance, in the case of a declaratory decree. therefore, looked at from any point of view, the contention of the appellant has to fail......of 56. whereby only a portion of the properties charged were brought to sale and purchased by the decree-holder himself. the present darkhast arises from a similar decree obtained in o. s. no. 366/57. there is no doubt some controversy as regards the latter question. i however, do not propose to resolve this controversy whether the present darkhast related to the decree made in the earlier suit or the later suit. i shall assume for the purpose of this appeal that it is either under one or the other.3. one of the contentions taken in the darkhast no. 146/63 is that having regard to the fact that some of the properties were sold in execution of the decree and purchased by the decree holder himself the debt was completely extinguished and nothing more remained for recovery under the first.....
Judgment:

B. Venkataswami, J.

1. This appeal is by the First Judgment debtor in Darkhast No. 146 of 1963 on the file of the Court of the Munsiff at Kumta. It is directed against the judgment made by the Civil Judge at Karwar, in C. A. No. 129 of 1966. That was an appeal directed against an order made by the Munsiff, Kumta, in the aforesaid Dharkhast, directing recovery of the balance due under a decree made in O. S. No. 366 of 1957.

2. It would appear that by virtue of an annuity agreement, wherein the appellant first judgment-debtor had agreed to Day certain sums of money, such payment being secured by the creation of a charge on several properties enumerated therein. In enforcement of that agreement, decrees were obtained against the first judgment debtor, as and when the annuity agreed became due end payable. The first of such decree was made in O. S. No. 216/ 54. The said decree was executed in Darkhast No. 312 of 56. whereby only a portion of the properties charged were brought to sale and purchased by the Decree-holder himself. The present Darkhast arises from a similar decree obtained in O. S. No. 366/57. There is no doubt some controversy as regards the latter question. I however, do not propose to resolve this controversy whether the present Darkhast related to the decree made in the earlier suit or the later suit. I shall assume for the purpose of this appeal that it is either under one or the other.

3. One of the contentions taken in the Darkhast No. 146/63 is that having regard to the fact that some of the properties were sold in execution of the decree and purchased by the Decree holder himself the debt was completely extinguished and nothing more remained for recovery under the first decree or the second decree. The Courts below came to the conclusion that in view of the fact that the liability under the annuity agreement was a recurring one, it was open for the Decree-holder to sue for the debt on the basis of the personal decree or execute the decree against the properties which have been left unsold, but were subject to the charge pursuant to such an agreement, Aggrieved by this Order, the first Judgment-Debtor appeals.

4. On behalf of the appellant in support of the proposition that the debt was extinguished reliance was placed exclusively on a learned Single Judge's decision of the High Court at Bombay in Devichand Ganesh v. Chintaman Yellappa. (AIR 1945 Bom 116). It seems to me that the said decision is clearly distinguishable on facts, and therefore, inapplicable to the facts of the present case.

5. That was a case where a mortgaged property was subsequent to the said mortgage made subject to a charge in favour of a certain person. In the enforcement of the mortgage the Property was brought to sale subject to such a charge, and the same was purchased by the subsequent charge-holder. The said charge-holder later on sought to recover the debt due to him by seeking for a personal decree against the mortgagor. The Court came to the conclusion that the charge-holder was estopped from claiming the personal decree, when he had lost the right to enforce the charge by bringing to sale the properties in question. It was further observed that if such a charge-holder tried to enforce the charge in the circumstances, it would amount to suing himself for bringing the properties to sale of which he admittedly became the owner by virtue of the earlier Court sale. This obviously cannot be done.

6. In the instant case, it is clear from the judgment in appeal that the decree was sought to be executed in the present Darkhast had itself provided for a personal remedy against the judgment-debtor. If the decree in question is the same as the one under which some of the properties charged with the payment of annuity had been brought to sale, it has itself provided for a personal remedy. Such a remedy, in my judgment, is clearly enforceable. Assuming, in the circumstances earlier set out by me, that the decree was different and a subsequest one which had provided for the sale of the remaining properties charged for the payment of annuity and also for a personal remedy, even then such a decree must run its course, end therefore should be given effect to. In these circumstances. If argument on behalf of the appellant that by virtue of the earlier sale and purchase by the Decree-holder of some of the charged properties, the debt was extinguished, were to be accepted it amounts to rendering such subsequent decree ineffective in law.

Such a result is clearly unwarranted in view of the law that any decree passed by a competent Court having jurisdiction over the subject-matter, rightly or wrongly, must be given effect to, unless it is inexecutable on its face, es for instance, in the case of a declaratory decree. Further a contention of the nature in question would amount to going behind the decree, as by the prior acts of sale and purchase in execution by the Decree-holder pursuant to an earlier decree, if the debt could be said to have been extinguished, it would be a question that ought to have been agitated in the suit itself. Such a question not having been raised or decided in the suit it would not be open to a Judgment-debtor to raise it in execution of such a decree unless the decree itself amounts to nullity in the eye of law. No such question has been raised in this case. As earlier observed, if the present Darkhast relates to the decree in the earlier suit itself, it would still be open for a Decree-holder to pursue and exhaust any personal remedy provided for under such a decree. Therefore, looked at from any point of view, the contention of the appellant has to fail. I see, therefore, no reason to interfere with the order impugned herein.

7. In the result, this appeal fails and is dismissed. But in the circumstances of the case, there will be no order as to costs.


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