HON’BLE SRI JUSTICE N.R.L. NAGESWARA RAO APPEAL SUIT No.675 OF 1998 JUDGMENT: The appeal is filed by appellants/defendants against the judgment in O.S.No.37 of 1987 on the file of the Subordinate Judge, Sompeta. 2. The suit was one filed for recovery of a sum of Rs.47,565/- being the principal and interest due on a promissory note, dated 11.09.1984 executed by Mamidi Appanna, who is father of defendants Nos.1 to 4 and husband of defendant No.5. In spite of repeated demands, amount was not paid and a decree was sought against the estate of late Mamidi Appanna in the hands of the defendants. Defendant No.2 filed a written statement, which was adopted by other defendants. They denied the knowledge of borrowing of the money by the deceased Mamidi Appanna and they pleaded that there is no obligation for them to discharge the debt as they are divided persons and the suit is also bad for non-joinder of the parties. The lower Court after considering the evidence on record, decreed the suit of the plaintiff with interest at 12% per annum on the principal amount of Rs.35,000/- against the estate of the deceased in the hands of the appellants herein. Against that judgment, the present appeal is filed. 3. On the basis of the above pleadings, the following issues have been framed by the trial Court, for trial: 1) Whether the suit pronote dated 11.09.1984 is true, valid and binding on the defendants? 2) To what relief? 4. On behalf of the Plaintiff, PWs.1 to 3 were examined and marked Exs.A.1 to A.12. On behalf of the defendants, DWs.1 and 2 were examined and marked Ex.B.1 and B.2 After considering the evidence on record, the learned Subordinate Judge decreed the suit of the plaintiff. Aggrieved by the same, the present appeal is filed. 5. The learned counsel for the appellants contends that there was a plea of earlier partition and the lower Court has not framed the issue on this aspect and consequently, the decree is not binding on the defendants 6. The point that arises for consideration is whether defendants are not liable to pay the suit debt? 7. POINT: The whole appeal of the appellants is misconceived. The suit itself was filed for recovery of amounts against the estate of the deceased in the hands of the appellants. In fact, it was not even the plea that the debt was borrowed for joint family benefit. Therefore, the question whether there was a partition and as to whether the defendants are not liable to pay the same is irrelevant. The only question that falls for consideration is whether the property of the deceased was available by the date of his death and whether the defendants have come into possession of such property. This can be decided only when the execution is taken for realization of the amount as per the decree. The scope of the consideration of the partition and allotment of the shares is beyond the scope of the present suit. Therefore, whatever objections with regard to the liability of the property shall be taken at the time of execution and the estate of the deceased in the hands of the defendants can be proceeded with. 8. Therefore, in view of the above circumstances leaving open the issue to be decided in execution about the availability of the properties of the deceased with the defendants, the appeal is liable to be dismissed. The point is answered accordingly. In the result, the appeal is dismissed. There shall be no order as to costs. _______________________________ JUSTICE N.R.L. NAGESWARA RAO Date:19.10.2011 INL