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Chirala Buchi Reddi Vs. Satti Savitramma - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAndhra Pradesh High Court
Decided On
Case NumberLetters Patent Appeal No. 118 of 1959
Judge
Reported inAIR1961AP305
ActsCode of Civil Procedure (CPC) , 1908 - Sections 38, 39 and 151 - Order 34, Rule 15
AppellantChirala Buchi Reddi
RespondentSatti Savitramma
Appellant AdvocateA. Kuppuswami and ;T.R. Ramachandra Rao, Advs.
Respondent AdvocateS. Venkata Reddy, Adv.
DispositionAppeal allowed
Excerpt:
.....on inimical terms with the 3rd defendant and that when a charge is created on the property and the decree-holder has not chosen to bring the charged property to sale, she has not succeeded in establishing that she tried her best to collect the insurance amounts or that she could not collect the same and that she was colluding with the 1st defendant. 6. it is now well settled that the high court of andhra is bound by the decisions of the madras high court delivered before 5th july, 1954 (vide subbarayudu v. apart from this decision being unquestioned as of high authority and in accord with the principles of jurisprudence as accepted in this country, it is in consonance with good sense and sound reason. it is one of the most important desiderate in the administration of justice that 'the..........3,000/- was paid at the time of the compromise and for the balance of rs. 4,000/- the respondent-decree-holder was given liberty to collect insurance amounts from the andhra insurance co., ltd., masulipatam and oriental insurance company of bombay and in the event of the insurance ft mounts not being realised, she was entitled to collect the said sum of rs. 4,000 from defendants 1 and 3 and from the charged properties mentioned in plaint schedules d, f and h. 3. the decree-holder-respondent filed e. p. 86 of 1953 on 31-8-1953 alleging that she failed to collect the insurance amounts, and since defendants 1 and 3 have to pay the amount of rs. 4,000/- mentioned in the decree, she prayed for attachment and sale of the properties described in the execution petition belonging to the 3rd.....
Judgment:

Jaganmohan Reddy, J.

1. This appeal under Clause 15 of the Letters Patent against the judgment of our learned brother Sanjeeva Row Nayudu, J. raises the question whether the decree-holder is bound to proceed against the properties given as charge in respect of the decree amount first, before enforcing the personal liability under the decree against the judgment-debtor and whether any different conditions apply to a compromise decree.

2. The respondent, Savitramma, filed a suit O. S. No. 42 of 1948 for partition of the properties or in the alternative for maintenance, against 18 defendants which ultimately ended in a compromise decree under I.A. No. 1240 of 1951 on 30-8-1951. Under this decree, the respondent was to be paid Rs. 7,000/- by the 1st and 3rd defendants. Satti Subbarayal Reddy and Chirla Butchireddi, in full settlement of all her claims.

In pursuance of this agreement, a sum of Rs. 3,000/- was paid at the time of the compromise and for the balance of Rs. 4,000/- the respondent-decree-holder was given liberty to collect insurance amounts from the Andhra Insurance Co., Ltd., Masulipatam and Oriental Insurance Company of Bombay and in the event of the insurance ft mounts not being realised, she was entitled to collect the said sum of Rs. 4,000 from defendants 1 and 3 and from the charged properties mentioned in plaint schedules D, F and H.

3. The decree-holder-respondent filed E. P. 86 of 1953 on 31-8-1953 alleging that she failed to collect the insurance amounts, and since defendants 1 and 3 have to pay the amount of Rs. 4,000/- mentioned in the decree, she prayed for attachment and sale of the properties described in the execution petition belonging to the 3rd defendant after due notice to defendants 1 and 3 under Order 21, Rule 22 C.P.C.

This view was opposed and the 3rd defendant in his counter-affidavit stated that the 1st defendant is his brother-in-law and the plaintiff decree-holder is the step-mother, of the 1st defendant and that in O.S. No. 42 of 1948 he was added as a party unnecessarily as he purchased the D schedule properties from the 1st defendant in 1945 itself. At the time of the compromise he was asked to join formally in the compromise petition on the representation that no relief would be asked against him.

The 1st defendant has now become inimical towards him, because he refused to reconvey the D schedule properties to him, unless he returned the price which the 3rd defendant paid for it. Due to this enmity he colluded with the respondent and both of them are milking a common cause against him. He further averred that the amounts so far paid under the compromise decree which amounted to more than Rs. 8,100/- have in fact been paid out of his own funds and that the insurance amounts which were made over to the respondent as per paragraphs S! and 3 of the compromise decree, could have been easily collected by the decree-holder inasmuch as she has received the amount of Rs. 75/- mentioned in paragraph 3 of the decree; but she. is deliberately refraining to take steps with the avowed object of collecting the decree amount from him, so that her step-son, the 1st defendant, could collect the insurance amounts.

It was further contended that he was not personally liable under the decree to pay the amount and that the decree-holder has to attach and self the properties charged under the decree; and that the decree passed in favour of the decree-holder is not a maintenance decree, but one charged on the properties in D, F and H schedules to the plaint.

That apart, the 1st defendant sold on 24-1-1952 one item from plaint F schedule to one Pusarala China Krishna Murthi for Rs. 3,250/- and executed an agreement of sale in his favour and out or the purchase money, a sum of Rs. 2,050/- was reserved for the respondent and that the purchaser wanted a sale deed to he executed by the respondent and the 1st defendant as there is a charge in respect of that property. R.W. 1 Mantri Rama-rao, power of attorney holder from the 1st defendant says that in pursuance of that power of attorney Ex. P-l, he entered into the agreement of sale.

It is stated that they (D and F schedule properties) are valuable properties and building sites in Visakhapatnam worth more than one lakh of rupees and that the H schedule properties are also valuable so that the contention was that when there are those valuable properties, the degree-holder was actuated by mala fides in ignoring them and trying to execute the decree against the 3rd defendant for the small sum of Rs. 4,000/-.

4. The Subordinate Judge on the evidence of R. W. 1, held that the 1st defendant was on inimical terms with the 3rd defendant and that when a charge is created on the property and the decree-holder has not chosen to bring the charged property to sale, she has not succeeded in establishing that she tried her best to collect the insurance amounts or that she could not collect the same and that she was colluding with the 1st defendant. In this view, following a judgment of a bench of the Madras High Court in Rangaswami Naicker v. Janakiammal, : AIR1953Mad876 , he dismissed the E.P. as the respondent was not entitled to proceed with the, execution unless and until the charged property has been exhausted.

5. Before our brother, Sanjeeva Bow Nayudu J., not only the decision of : AIR1953Mad876 but also the decision of Srinivasa Ayyar v. Lakshmi Ammal, ILR 56 Mad 343 : (AIR 1933 Mad 33 (1)) were cited for the proposition that the respondent was not entitled to proceed with the execution unless and until the charged property has been exhausted or where the judgment-debtor shows that the decree-holder's application is mala fide and oppressive and not made for legitimate purposes, the Court may in its discretion refuse the decree-holder's application and compel her to pursue her remedy against the security. The first or these decisions, which is by Mack, J. sitting singly, was distinguished on the ground that it did not relate to a compromise decree and the observations in the second one, which is of a Division Bench were dissented from.

6. It is now well settled that the High Court of Andhra is bound by the decisions of the Madras High Court delivered before 5th July, 1954 (Vide Subbarayudu v. State of Andhra, : AIR1955AP87 (FB), not only on the ground that the High Court of Madras and the High Court of Andhra are of co-ordinate jurisdiction, but also on (he ground of stare decisis. It was observed that a single Judge shall not differ from a judgment of another single Judge of the same court, and if he does not agree, the proper course is for him to refer the case to a Bench of two Judges.

Further, a single judge is bound by a decision of a Division Bench exercising appellate jurisdiction and if there is a conflict of Bench decisions, ho should refer the case to a Bench of two Judges who may refer it to a Full Bench. A Division Bench must ordinarily respect another Division Bench of co-ordinate jurisdiction; but if it differs, the case should be referred to a Full Bench.

Apart from this decision being unquestioned as of high authority and in accord with the principles of jurisprudence as accepted in this country, it is in consonance with good sense and sound reason. It is one of the most important desiderate In the administration of justice that 'the law should be certain that that it should be ideally perfect,' for, if this were not so, the evils of uncertainty may be far-reaching, and it would not only create confusion in the public in determining their rights with respect to any particular matter, but also in the subordinate Courts in applying it.

The determination of rights by courts, with such uncertainty, would be more speculative and would vary as the saying goes, with the 'loot oil the Chancellor.' The doctrine of stare decisis stated in Broom's Legal Maxims, which was cited by Subba Rao, C.J. in the Full Bench judgment is so apt that it bears repetition. As page 103 of the 8th edition of the book, the doctrine was slated thus ;

'It is then an established rule to abide by former precedents, stare decisis, where the same points come again in litigation, as well to keep the scale of justice even and steady, and not liable to waver with every new Judge's opinion, as also, because the law in that case being solemnly declared and determined, what before was uncertain and perhaps indifferent, is now become a permanent rule, which it is not in the breast of any subsequent Judge to alter or swerve from according to his private sentiments; he being sworn to determine, not according to his own private judgment, but according to the known laws and customs of the land not delegated to pronounce a new law, but to maintain the old jus dicere et non jus dare.'

A similar, question came up before a Bench of this Court consisting of Hon'ble the Chief Justice and Sanjeeva Row Nayudu J. in P. China Kotaiah v. P, Kotaiah, 1960 Andh. L.T. 357. The reference to the Bench was made by Bast Reddy J. because a Full Bench decision of the Madras High Court in Venkata v. Chengadu, I.L.R. 12 Mad. 168 was not followed by two Division Benches of the same court in Ravala Nagamrna v. Secy, of State, 1913 Mad WN 75 and Marukkolandayamma v. Secy, of State, ILR 55 Mad 876 : (AIR 1932 Mad 664). The Full Bench decision which was not accepted by the later Division Benches was on the ground that it had not been followed on this point in subsequent decisions and the better opinion was as slated by them. Referring to this conflict and the observations in ILR 55 Mad 876 ; (AIR 1932 Mad 684), Sanjeeva Row Nayudu J. who delivered the judgment of the Bench said at p. 365 as follows:

'These observations in our opinion, overlook the fundamental principles bearing on the law of precedents namely that a Full Bench decision must be regarded as good law and binding on all single and division benches, until a fuller bench had decided contrary to the decision of the Full Bench.' After referring to the observations of Leach, C.J. in Seshamma v. Narasimha Rao, 1940-1 Mad. LJ 400 : (AIR 1940 Mad 356) and the observations of Subba Rao, C. J. (as he then was) in K. C. Nambiar v. The State of Madras, : AIR1953Mad351 (and not M. K. Chengalroya Chetti v. Special Deputy Collector, : AIR1953Mad348 , as referred to in 1960 Andh. LT 357), and reiterated by him in : AIR1955AP87 (FB) Sanjeeva Row Nayudu J. dissented from the observations made in ILR 55 Mad 676: (AIR ''1932 .Mad 664) as regards the binding and operative character of the decision in I.L.R. 12 Mad. 168 (F.B.).

In these circumstances, we cannot, with respect, approve the dissent of the learned Judge from the decisions and observations of Venkata Subba Rao, and Reilly, JJ. in ILR 56 Mad 343 : (AIR 1933 Mad 33(1)). If the learned Judge considered that this decision had not correctly decided the law as stated, he could have referred the case to a Bench and if it was of the same opinion it could have referred it to a fuller bench for laying down authoritatively the law on the point.

7. In our considered view, the observations of Venkata Subbarao J. and agreed by Reiliy, J. two eminent Judges of the Madras High Court can-not be lightly dissented from. That was a case where a decree for maintenance was obtained by a Hindu widow, which directed the defendants to pay the plaintiff maintenance at a certain rate out of the assets of their joint family and charged some specific items of property with the maintenance awarded.

The decree-holder widow sought to execute the decree by attachment and sale of the assets of the joint family other than the charged property before exhausting her remedy against the charged properties. The judgment-debtors obviously raised the question of mala fides on the part of the decree-holder which was negatived by the Bench with the observations, 'But, in the present case, the facts show that, far from the plaintiff's action being mala fide the defendants, who own extensive property are withholding maintenance with the object of spiting the plaintiff.' It is in this context, Venkatasubba Rao, J. observed as follows at page 345 (of ILR Mad): (at p. 33 of AIR):

'If the defendant succeeds in showing that the plaintiffs application is mala fide and oppressive and not made for a legitimate purpose, the Court may, in the exercise of its discretion, refuse the plaintiff's application and compel her to pursue her remedy against the security.'

We cannot accept the contention of the learned advocate for the respondent, Shri R. V. Rama Rao, that these observations were obiter for the reasons already stated, viz. that the question of mala fides was urged before the Bench and it was necessary for that Bench to consider this proposition. Obiter dictum in our view, is one which is not necessary for the decision of the case.

Where more than one point which fell for determination has been urged and considered, and though the case could be disposed of on one point only, but it has been disposed of on all the points, it cannot be said that the disposal on the other points was not necessary or that the observations in relation thereto are obiter. If the element of malice and collusion were unimportant and these played no part in the determination of the case, it was not necessary to give a finding on that matter that there was no malice or collusion.

The matter could have been disposed of on the sole ground that no such defence could be urged and that the decree-holder has an absolute right in spite of these elements to execute his decree on whichever property he chooses. The necessity to give a finding was conditioned by the principle enunciated in this case as being in accord with the law. If the court came to the conclusion that the facts disclosed male fides, then it would have held, in that view, that the decree-holder must first recover from the charged properties; but as it happened in that case, it was not established that there was mala fides. It cannot therefore be said that the observations were obiter or that they were not part of the judgment in the case.

8. In : AIR1953Mad876 the question of mala fides and collusion of the decree-holder with one of the other judgment-debtors was directly raised arid the lower court, without going into that allegation allowed the execution to proceed. That was also a case for arrears of maintenance and for future maintenance in favour of the widow, where the decree charged certain properties in the hands of the judgment debtors, so as to make the liability of the judgment-debtors equal.

The decree-holder sought to execute the decree by attachment of some uncharged property in the hands of one of the judgment-debtors. Mack J. following the judgment in ILR 56 Mad 343 : (AIR 1933 Mad .33 (1)), which was binding on him, held that a widow cannot in execution be confined to property charged with her maintenance and that she need not exhaust it before proceeding against other property belonging to her husband's joint family property, unless mala fides and collusions could be established in which case the executing Court would be perfectly justified in refusing execution until the charged property has been exhausted. At p. III (of Mad LJ) : (at p. 876 of A.I.R.) the learned Judge observed:

'I think this is a case which should be remitted to the execution Court for a finding on the allegation contained, in para 4 of the judgment-debtor's counter which the learned Subordinate Judge has not considered at all. There is, I consider, one ground on which a decree-holder can be deprived in any decree which gives concurrent remedies, as in the case of these maintenance decrees of option as to whom he or she should proceed against. If a judgment-debtor can satisfy the executing court that the decree-holder is acting in 'mala fide' collusion with one of the other judgment-debtors in execution against him only, the executing court would be perfectly entitled to refuse execution, in a case such as this, until the charged properly has been exhausted. No doubt the first defendant would if execution proceedings against him resulted In the sale of uncharged property which fell to his share at partition have the right to sue his brothers for reimbursement. But the existence of this right will not justify abuse of execution. What constitutes active 'mala fide' collusion is a difficult matter to define and must depend on the facts of each case.'

In this view he remitted the case to the executing Court for disposal according to law after a finding on the collusion alleged. The observation of Sanjeeva Row Nayudu, J. that this case did not deal with a compromise decree cannot in the least justify the non-application of the principle to a compromise decree.

We would have thought that a compromise decree was an a fortiori case for the application of this principle, because, there the parties have prescribed and provided for a particular mode of execution which particular mode ought to be followed and if there is mala fides or collusion in not following that course, the Court apart from the terms of the decree itself, would refuse to permit execution by directing the decree-holder, to go against the charged properties first. There is an inherent power in the Court to prevent the abuse of a remedy actuated by mala fides and collusion.

It is not difficult to envisage cases where such abuse may take place;, for instance, where money is deposited in Court to the credit of the judgment debtor in another suit (where he is the decree-holder) and he in execution of the decree against him requests the decree-holder to withdraw that money, but the decree holder, actuated my malice or collusion and with a view to harass him or affect his reputation, wishes to execute the decree by attachment and safe of his valuable property, it cannot he said that the Court in those circumstances would be precluded from directing the decree-holder to obtain satisfaction from the money in Court.

We cannot say in what circumstances such questions may arise, but certainly an inherent power exists in the Court to prevent such abuse of the process of the court. Section 151 C.P.C. embodies such a principle. As observed by Peacock, C.J. in Hurro Chunder Roy v. Shooradhonnee Debia, 9 Suth WR 402 at p. 406,

'Since laws are general rules, they cannot regulate for all tune to come so as to make express provisions against all inconveniences, which are infinite in number, and so that that dispositions shall express all the cases that may possibly hap-pen. It is the duty of the Judges to apply the laws, not only to what appears to be regulated by their express dispositions but to all the cases to which just application of them may be made) and which appear, to be comprehended either within the express sense of the law, or within the consequences that may he gathered from it.'

That apart, there is nothing in the Code which prevents the Court from directing the decree-holder Io execute and satisfy his decree from any particular property situate either within its local limits or outside. (See Section 38 C.P.C.). I Under Section 39 C.P.C. the court which passed a decree may, on the application of the decree-holder, send it for execution to another court. The power given under this section is permissive and not mandatory. It is discretionary. (See Ramanathan v. Kasi. AIR 1944 Mad 73). It cannot be said that there is no discretion vested in the Court under any circumstances.

9. It is admitted that the charged properties are in Visakhapatnam, while the court which passed the decree was in Eluru of West Godavari District; as such it had the power to refuse execution by transfer of the decree to the Visakhapatnam Court if it came to the conclusion that it could be executed by it itself. The terms of the compromise decree may now usefully be set out in order to determine whether the parties intended any particular mode of execution, and it so, they are bound by the terms to follow that particular mode. Clauses 1 to 5 of the decree which are relevant road as under:

1. That in full settlement of all the claims of the plaintiff in this suit the defendants 1 and 3 shall pay Rs. 7,000/- (seven thousand rupees) to the plaintiff and that out of the said sum Its. 3,000/- shall be paid by the said defendants to the plaintiff before the court at the time of recording this compromise.

2. That towards part payment of the balance of Rs. 4,000/- the plaintiff shall pay the amount of Rs. 1,000/- due under the life Insurance No. 10653 on the life of Satti Virareddi from the Audhrara Insurance Company Ltd., Masulipatam and the Rs. 1,000/- due under policy No. 4779/6 on the life of Satti Virareddi from the Oriental Government Security 'Life Assurance Ltd., Bombay and that the plaintiff do recover these amounts from the said Insurance companies without any reference to the 1st defendant, that the 1st defendant shall intimate to the said Insurance companies to pay the policy amount to the plaintiff and send all the necessary papers to these companies to enable payment of these Insurance amounts to the plaintiff and that the 1st defendant shall deliver the Insurance policies to the plaintiff for being sent to the said insurance companies,

3. If for any reason the said Insurance Companies do not pay the said insurance amounts in the whole or in part to the plaintiff, and plaintiff shall take only such amount as is realised by her from the companies towards part payment of the Rs. 4,000/- above referred to and that defendants 1 and 3 shall pay Rs. 75/- to the plaintiff towards the costs and expenses that may be necessary for getting the said insurance amounts and if defendants 1 arid 3 fail to pay, the plaintiff shall recover the same from defendants 1 and 3 by executing this decree.

4. Subject to the condition stated in the above paragraphs if the said amount of Rs. 4,000/-after giving credit to the amounts of insurance policies the balance payable by defendants 1 and 3 to the plaintiff being Rs. 2,000/- the plaintiff shall give credit therein to the bonus if any that may be paid by the said insurance companies and for the remaining amounts shall have a charge on the plaint D.F. and H scheduled properties and that if portion of the insurance amounts are realised or only part of the insurance amounts are realised by the plaintiff, the plaintiff shall have a charge also in respect of the said amounts which she may not be able to realise in whole or in part as the case may be on the plaint D., F. and H. scheduled properties.

5. That in the said amount of Rs. 4,000/- deducting the amounts that may be realised by the plaintiff under the insurance policy, the balance shall be paid by defendants 1 and 3 to the plaintiff before 27-11-1951 and in default the plaintiff shall recover the same from defendants 1 and 3 with interest at As, 0-7-4 per cent per mensem from defendants 1 and 3 and by the sale of the plaint D., F. and H. scheduled properties over which charge is created by executing this decree along with costs of execution.

10. Under the terms of the decree, it is incumbent upon the decree-holder to recover amounts from the insurance companies on receipt of Rs. 75/- from defendants. 1 and 3 towards costs and expenses, probably for obtaining succession certificates etc. It is only after she has attempted to realise these amounts from the Insurance companies that she will be entitled to execute the decree for such of the balance against defendants 1 and 3 and by the attachment and sale of the charged properties.

Paragraph 6 of the counter of the appellant shows that as per paras 2 and 3 of the compromise decree, the insurance policies were made over to the decree-holder; that Rs. 75/- were paid to her and that everything was made ready for her to recover the amounts due under the two policies which amount to more than Rs. 2,000/-. There has been no contradiction about these allegations. In these circumstances, the execution against the 3rd defendant cannot be proceeded without the decree-holder first taking steps for recovery of the insurance monies.

It is only after that, that she can execute her decree against him. Of course, the appellant cannot say, in the circumstances of the case where the charged properties are situate outside the jurisdiction of the executing court, that she should only proceed against those properties first, when the decree could be satisfied with facility by proceeding against the properties within the jurisdiction of the court which passed the decree.

11. In the circumstances, the appeal is allowed with the above directions, and the judgment ofour learned brother is set aside with coststhroughout.


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