Mudragada Subbarao and Another vs Mudragada Venkatanarasimha Rao and Another

Govinda Menon, J.—The important point which has to be considered in this appeal is whether the compromise decree passed by the

Subordinate Judge of Kakinada in O. S. No. 37 of 1912 on 28-11-1918 is executable or not, because the appln out of which the present appeal

arises is for execution of that decree & for reliefs which have been claimed in para 13 of the execution petn. The reliefs claimed are that resp 1 in

the lower Ct be directed to hand over the account paper, etc., relating to the Veeravallipalem Choultry trust & place the petnr in possession of the

properties for managing it for three years continuously & that the resps 1 to 3 be directed to file into Ct from the year Promoduta onwards the

accounts till the date of petn. There were incidental reliefs also prayed for.

Various objections were raised but they were all overruled by the learned Judge who allowed the petn as prayed for with some reliefs granted in

favour of the petnr. As we are not deciding the correctness or otherwise of the findings of the learned Judge on the point for consideration which

arose before him except with regard to the executability of the decree, we do not wish to say anything regarding the'' justifiability of the findings of

the learned Judge on the facts & evidence placed before him.

The operative portion of the decree with which we are concerned is as follows:

In the rajinama filed by the parties on 7-2-1913 the Ct, was invited to frame a scheme as regards the management of the Veeravallipalem choultry

by pltfs & defts 1 to 5. No detailed scheme is necessary as the rajinama says that it should be managed as a private choultry of the family. It is

however necessary to give some simple directions to avoid disputes, (a) The properties allotted under the said rajinama & also the income of the

choultry lands for the current year & the amount now ascertained & allotted to the choultry for the 6 pies share of the profits of the Kotipalli lan-

kas, do vest in the choultry as the property of the trust. The amount now allotted will form a corpus fund which, on realisation, shall be invested in

proper securities, (b) The choultry & its properties & income should be managed by rotation of a Telugu year, each beginning with deft 1 who is

the eldest member & afterwards pltf 1 & subsequently deft 4 & finally deft 5 (defts 4 & 5 would have attained majority prior to their turn). Deft 1

will also manage for, the rest of the current Telugu year, (c) The trustee should in his turn keep proper accounts of the receipts & disbursements,

file a copy of the account into Ct once in 6 months for the inspection of the other parties & hand over the accounts with the cash on hand at the

end of his turn to the succeeding trustee.

In our opinion the utmost that could be said in favour of the executable nature of the decree is that the last sentence which mentions that ""the trustee

should hand over the accounts with the cash on hand at the end of his turn to the succeeding trustee"" is a provision which might possibly be said to

make this decree executable; that is, as soon as the one year term mentioned in the decree for one of the parties to manage the properties expires,

he should hand over the properties with the accounts to the succeeding trustee. It is contended for the petnr resp that this portion of the decree is

executable & as such the appln in the lower Ct is maintainable. In our opinion it is difficult to hold that this sentence should toe construed as an

executable decree passed with a direction by the Ct that the decree-holder may execute it against a judgment-debtor. We are unable to say that

there is any decree-holder as such or that there is any judgment-debtor. It may be that during one year the person entitled to keep possession of

the management may be a judgment-debtor if the construction put upon it by the learned counsel for the petnr-resp can be accepted so that the

two positions interchange during various years & we feel that it is unsafe to construe this portion of the decree as an executable one. A large body

of case law of this Ct has laid down that a provision in a scheme decree is inexecutable, whether the provision is directory or mandatory & the

preponderance of judicial opinion in the Madras H. C. is against the view that such provisions are executable. See Bava C. Vaithilinga Mudaliar

Vs. The Board of Control, Sri Thyagarajaswami Devasthanam Tiruvarur, ; Trustee of Temple of Sree Venugopalaswamivaru Vs. Vedantam

Seetharamanujacharyulu and Others, ; V.E.N.K.R.M.A. Ramanathan Chettiar Hukdar of Nagappa Chettiar Kattalai in the Sri Meenakshi

Sundareswarar devasthanam Vs. The Madura Sri Meenakshi Sundareswarar Devasthanam, & Matte Atchutarama Rao Vs. Solasa Bapanayya,

Trustee Vijjapu Kamakshamma Charities and Others, . As the trend of decisions of this Ct is very much in favour of the view that provisions in a

scheme (decree cannot be executed, though there were a few decisions to the contrary earlier, we do not feel that despite the view taken by the

other H. Cs. we should go against the trend of authority of this Ct. We, therefore, are of opinion chat the decree as such cannot be executed.

Mr. Narasaraju for resp 1 contended that the provision for an yearly management in the decree is one which accrues in favour of each of the

parties as & when their turn comes & that portion of the decree can be separated & executed. For this purpose he invited our attention to the

observations contained in M. Varadaiah Chetti and Another Vs. K. Narasimhalu Chetti and Others, . We do not think that the observations

contained in that judgment can be usefully applied to the elucidation of the question for decision in the present case.

Mr. Narasaraju then contended that as was allowed in Trustee of Temple of Sree Venugopalaswamivaru Vs. Vedantam

Seetharamanujacharyulu and Others, should be permitted to con-pert the execution appln into a suit under the second part of Section 47, C. P. C.

We feel that this is a legitimate request & permit him, on condition that the proper Ct-fee is paid within the time fixed, by the lower Ct, to convert

the execution appln into a suit. He is also permitted to amend the execution petn by adding the necessary averments which he may be advised to

add, as well as to add a prayer that if the Ct finds that the scheme itself has become unworkable, on account of the attitude taken by the parties,

the Ct should amend the scheme & make it workable. The necessary consequences of converting the appln into a suit will follow. The order of the

learned Subordinate Judge is therefore set aside & E. A. No. 271 of 1943 is remanded to the lower Ct to be disposed of according to law.

Pending the suit, it is open to the Subordinate Judge to devise such means as he deems fit for the management of the property. But that would not

give a right to the applts herein to ask for restitution of management. If the learned Subordinate Judge finds that resp 1 herein is a person who can

be entrusted with the management during the course of the suit, he is at liberty to do so. The applts are entitled to their costs in this Ct.

The memorandum of cross objections is dismissed but, without costs.