Decided on November 24,1952



- (1.) THIS second appeal is by defendants 1 and 2 against the decision of the Subordinate Judge of Kumbakonam affirming the decree granted in favour of the plaintiff by the District Munsif setting aside a claim order. The dispute concerns the estate of one late Sivaramakrishna Aiyar and he became liable to pay costs to one Sivagangai Achi as per the decree in O. S. No. 40 of 1928, Sub-Court, Mayavaram. The present plaintiff obtained an assignment of that decree on 22-10-1931. Thereafter, the plaintiff applied to the Sub Court, Mayavaram, for recognising the assignment in his favour and to transmit the decree for execution to the District Munsif's court, Kumbakonam. By that time, the judgment-debtor died and his widow, Dharmambal, was impleaded as the legal representative. The decree was transmitted to the District Munsif's court, Kumbakonam, and the suit house was attached on 2-4-1942. Thereafter, in E. A. No. 750 of 1942 the present defendants who are the sons of one Kuppahi Ammal, the sister-in-law of Sivaramakrishna Aiyar claimed that the property could not be attached as they obtained the property as a legacy under the will of the late Sivaramakrishna Aiyar dated 1-12-1918 (Ex. D. 1 ). Under this Will, Dharmambal was given a life interest and it was alleged by the defendants that she had surrendered the property to Kuppahi Ammal in 1933. The District Munsif who heard the claim petition held that the surrender was not proved and valid and that the decree-holder could proceed only against the life-interest of Dharmambal in execution of the decree. There was an appeal against the order of the Sub Court, Kumbakonam. Treating the order as one under Section 47, Civil P. C. , the appeal was allowed and the matter was remanded to the District Munsif's court on 16-8-1943 for proper inquiry under Section 47. Against the order of the remand, the defendants preferred an appeal to the High Court and the High Court held, on 25-8-1944 that the matter does not fall under Section 47. The plaintiff therefore instituted the suit to set aside the claim order and claiming that he was entitled to attach not only the life interest but the property itself. It might be mentioned, that Kuppalu Ammal died in 1940 during the pendency of the proceedings and the sons were sought to be impleaded as legal representatives. But it was held by the Court that they were mere legatees. The execution however, was proceeded with on the basis of the prior attachment during the lifetime of Dharmambal, the heir-atlaw of Sivaramakrishna Aiyar who would have taken the estate in the absence of a will.
(2.) IN the suit, the defendants raised various pleas; but the principal and the only question which is now outstanding is whether the suit properties could be proceeded against in execution of the decree in O. S. No. 40 of 1926, without filing a separate suit against the defendants. Both the courts held that execution could proceed against the house in the hands of the defendants.
(3.) IN this second appeal, the sole question for decision therefore is whether the remedy of the decree-holder to realise his decree amount is only by way of a suit against the defendants or the execution could be proceeded with against the property in their hands.;

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