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Rani Veerammani Vs. Rajaveerabasava Chikka Royal and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported inAIR1939Mad278; (1939)1MLJ39
AppellantRani Veerammani
RespondentRajaveerabasava Chikka Royal and ors.
Cases ReferredDharamdeo Rai v. Jwala Prasad
Excerpt:
- - 25 of 1930 but suggests that in the circumstances the lower court would have been well advised to allow any necessary amendments to be made in the execution petition to bring it into accord with the provisions of o. 25 of 1930 has no strong objection to raise to such permission being granted at this stage. it is quite clear, as we have already said, that the appellant was acting in perfect honesty when she applied for execution of the decree for her own benefit to the extent of rs......applied for execution of the decree without stating expressly that she was only one of the four decree-holders. it appears that in a subsequent suit, o.s. no. 42 of 1933 in the same court which was a suit between the first plaintiff and the second plaintiff in o.s. no. 25 of 1930, there was a compromise by which those two persons agreed that out of the amount still due under the decree in o.s. no. 25 of 1930 the first plaintiff rani veerammani garu should receive rs. 3,000 and the balance should be taken by the third plaintiff rani mahadevammani garu without any further claim by the first two plaintiffs in o.s. no. 25 of 1930. it was further declared in the decree in o.s. no. 42 of 1933 that the plaintiff be entitled to a first charge on the decree in o.s. no. 25 of 1930 to the extent.....
Judgment:

Burn, J.

1. The appellant was the first plaintiff in O.S. No. 25 of 1930 on the file of the Subordinate Judge of Chittoor. There were four plaintiffs altogether and the decree passed in the suit was in favour of all of them. In E.P. No. 22 of 1936, on the 10th of February, 1936, the first plaintiff applied for execution of the decree without stating expressly that she was only one of the four decree-holders. It appears that in a subsequent suit, O.S. No. 42 of 1933 in the same Court which was a suit between the first plaintiff and the second plaintiff in O.S. No. 25 of 1930, there was a compromise by which those two persons agreed that out of the amount still due under the decree in O.S. No. 25 of 1930 the first plaintiff Rani Veerammani Garu should receive Rs. 3,000 and the balance should be taken by the third plaintiff Rani Mahadevammani Garu without any further claim by the first two plaintiffs in O.S. No. 25 of 1930. It was further declared in the decree in O.S. No. 42 of 1933 that the plaintiff be entitled to a first charge on the decree in O.S. No. 25 of 1930 to the extent of Rs. 3,000 with interest thereon and that she be entitled to execute the said decree in her own name to the said extent. It is recited in the decree that Rani Mahadevammani and Raja Mahadeva Raja Varu the third and fourth plaintiffs in O.S. No. 25 of 1930 had recorded their consent to this arrangement in the compromise petition. It is not disputed that this latter recital is correct; when the third and fourth plaintiffs did agree to the first plaintiff taking Rs. 3,000 out of the amount decreed in O.S. No. 25 of 1930.

2. It is not known how the Court came to pass the decree in O.S. No. 42 of 1933 in those terms because it is not possible under the provisions of Order 21, Rule 15 for one of several decree-holders to execute the decree for his or her own benefit. However the decree was passed and it is quite clear that all the joint decree-holders in O.S. No. 25 of 1930 did consent to that arrangement. It cannot therefore be alleged for a moment that the first plaintiff when she filed E.P. No. 22 of 1936 was attempting to perpetrate any fraud upon the Court or upon her fellow decree-holders. The judgment-debtor in O.S. No. 25 of 1930 raised the objection that the execution petition was liable to be dismissed as it was filed only by one joint decree-holder. Notice was thereupon given to the other decree-holders in O.S. No. 25 of 1930 and they for some unexplained reason supported the objection raised by the judgment-debtor. The learned Subordinate Judge dismissed the execution petition outright. Mr. Sitarama Rao who appears for the appellant in this Court concedes that the execution petition ought to have been filed on behalf of all the decree-holders in O.S. No. 25 of 1930 but suggests that in the circumstances the lower Court would have been well advised to allow any necessary amendments to be made in the execution petition to bring it into accord with the provisions of O. 21, Rule 15. Mr. Sam-path Aiyangar who appears for the third and fourth decree-holders in O.S. No. 25 of 1930 has no strong objection to raise to such permission being granted at this stage. The learned Advocate for the judgment-debtor however opposes this suggestion. He says in the first place that the appellant, as soon as the defect in the execution petition was brought to her notice, might have filed a fresh application at once in accordance with Order 21, Rule 15 without pursuing the matter to the bitter end in the Subordinate Court and then preferring an appeal to this Court. He points out also that it is possible that by this time more than three years may have elapsed since the dismissal of the last prior execution petition. In that case he says that the judgment-debtor would be deprived of the plea of limitation if amendment of the execution petition were now allowed. We do not think that these considerations should prevent us from saying that the petition should be allowed to be amended now. It has been pointed out by Sir Shadi Lal, J., in the case of Ghanaya Lal v. Madho Parshad A.I.R. 1931 Lah. 600 that the omission in an application by one of several decree-holders for execution to mention that there are other decree-holders does not necessarily invalidate the application. The learned Chief Justice observes:

Order 21, Rule 15 provides that any one or more of the joint decree-holders may apply for the execution of the whole of the decree for the benefit of them all; and it is nowhere laid down that the omission on the part of a decree-holder to state in his application the names of all the persons who are interested in the decree is such a defect as would invalidate the execution proceedings.

3. The learned Chief Justice then refers to a case decided by a Division Bench of the Calcutta High Court in which it was held that such an omission does not render the execution proceedings invalid. It is pointed out also in the case of Dharamdeo Rai v. Jwala Prasad : AIR1930All188 , that

Although under Rule IS of Order 21 no duty has been cast upon the Court receiving the application for execution to have the defects remedied it does not follow that if any requirements of Rule 15 of Order 21 have not been complied with by inadvertance or otherwise, the Court when its attention is drawn to the defect subsequently cannot allow the amendment.

4. We agree with the observations of the learned Judges in that case at page 190 where they observe:

The learned Judge has dismissed the last application on the additional ground that only one of the two decree-holders applied for execution without making it appear on the face of it that it was made for the benefit of the legal representatives of his deceased decree-holder. In taking to this course the learned Judge has allowed his mind to be influenced by too technical a consideration which is devoid of all substance and in utter disregard of the ends of substantial justice.

5. We think the same remarks apply here. It is quite clear, as we have already said, that the appellant was acting in perfect honesty when she applied for execution of the decree for her own benefit to the extent of Rs. 3,000. That was the arrangement which had been come to between the four decree-holders and it was hot an arrangement to which the judgment-debtor could take a valid objection; he could only request the Court under Order 21, Rule 15 to see that his interests were not in any way jeopardised by payment to one out of four decree-holders. This being so, we think that this appeal must be allowed and the order of the learned Subordinate Judge dismissing the execution petition set aside. The execution petition must be restored to file and disposed of according to law after allowing the appellant to amend it in order to bring it into compliance with the requirements of Order 21, Rule 15. We think it is right to order that the appellant should pay the costs of all the respondents in the execution petition and in this appeal.


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