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Korada Bottamma and anr. Vs. Korada Audinarayana and ors. - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported inAIR1918Mad56(1); 43Ind.Cas.1008
AppellantKorada Bottamma and anr.
RespondentKorada Audinarayana and ors.
Excerpt:
civil procedure code (act v of 1908), order xxi, rule 15 - execution--death of one of several decree-holders--surviving decree-holders, right of, to execute decree--heirship to deceased decree--holder, question of--procedure. - - that petition has been dismissed by the district judge, who seems to have allowed his mind to be diverted by a question as to who were the heirs of the 2nd plaintiff and other similar questions, though they do not seem to have been distinctly raised before him......the decree. that petition has been dismissed by the district judge, who seems to have allowed his mind to be diverted by a question as to who were the heirs of the 2nd plaintiff and other similar questions, though they do not seem to have been distinctly raised before him. under rule 15, order xxl, the surviving decree holders are entitled to execute the decree for their own benefit and for the benefit of the legal representatives of the deceased joint decree holder, that is, the 2nd plaintiff in this case. the proper course would be to allow the plaintiffs nos. 1 and 3 to execute the decree under rule 15, order xxi, and then if the 2nd defendant who claims to be the heir of the 2nd plaintiff brings himself on the record in these proceedings and raises the question as to his heirship,.....
Judgment:

1. The 1st plaintiff is the widow of one Suryanarayana and the 2nd plaintiff who is now dead was his daughter by a predeceased wife and the 3rd plaintiff is his daughter by the 1st plaintiff. The suit was for partition and the rights of the plaintiff were based on a Will left by Snryanarayana. There was a joint decree for one fourth share of the family property in favour of the plaintiffs and the petition is put in by plaintiffs Nos. 1 and 3 for execution of the decree. That petition has been dismissed by the District Judge, who seems to have allowed his mind to be diverted by a question as to who were the heirs of the 2nd plaintiff and other similar questions, though they do not seem to have been distinctly raised before him. Under Rule 15, Order XXL, the surviving decree holders are entitled to execute the decree for their own benefit and for the benefit of the legal representatives of the deceased joint decree holder, that is, the 2nd plaintiff in this case. The proper course would be to allow the plaintiffs Nos. 1 and 3 to execute the decree under Rule 15, Order XXI, and then if the 2nd defendant who claims to be the heir of the 2nd plaintiff brings himself on the record in these proceedings and raises the question as to his heirship, the Court will proceed to enquire into the matter and dispose of it according to law. We set aside the order of the District Judge and remand the appeal to him for disposal according to law in the light of the above observations. Costs will abide the result.


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