THE HON’BLE SRI JUSTICE K.G. SHANKAR A.S.No.991 of 1991 Date: 14.11.2010 Between: Muliki Venkata Lakshmi and 2 others .. Appellants AND Penumallu Veerabhadra Reddy and another .. Respondents THE HON’BLE SRI JUSTICE K.G. SHANKAR A.S.No.991 of 1990 JUDGMENT: The appeal is laid by defendants 2 to 4 in O.S.No.54 of 1987 on the file of the Senior Civil Judge, Pitapuram. The first respondent is the plaintiff. The second respondent is the first defendant. 2. The suit was laid by the plaintiff for a sum of ` 44,060/- on the basis of Exs.A.1 to A.3 promissory notes. They were executed by one Muliki Appa Rao. Muliki Appa Rao died on 15.02.1987. The present suit was laid on 05.03.1987. The suit was decreed against the father of Muliki Appa Rao as defendant No.1, the wife of Muliki Appa Rao as defendant No.4 and minor daughters of Muliki Appa Rao as defendants 2 and 3. 3. The defendants contended that Muliki Appa Rao did not borrow the monies as alleged by the plaintiff. They further contended that there were no properties of Muliki Appa Rao, in the possession of the defendants for the defendants to be directed to satisfy the obligation of Muliki Appa Rao. Through the impugned judgment, the trial Court held that the suit pro-notes were truthful. The trial Court further held that there were properties of late Muliki Appa Rao in the hands of defendants 2 to 4. Consequently, a decree was passed against the defendants 2 to 4. Holding that no property of Muliki Appa Rao was in the hands of the first defendant, the suit was dismissed against the first defendant. Aggrieved by the same, the defendants 2 to 4 preferred the present appeal. 4. The three pro-notes under Exs.A.1 to A.3 are dated 15.01.1985, 15.07.1985 and 01.09.1985 respectively. They were for sums of ` 20,000/-, ` 8,000/- and ` 8,000/-. Interest at 12% per annum was payable on the pro-notes. As already pointed out, the defendants took the stand that the pro-notes were not true, valid and binding on the defendants. The plaintiff examined as many as six witnesses and marked Exs.A.1 to A.3 pronotes as well as Exs.A.4 to A.6. The defendants also examined four witnesses including the fourth defendant as DW.1. The trial Court found that the claim of the defendants that the suit pro-notes were not executed by late Muliki Appa Rao was not correct. 5. Sri M.S. Ramachandra Rao, learned counsel for the appellants/defendants 2 to 4 candidly submitted that the defendants have not been contesting this part of finding of the trial Court. The controversy, however, revolves round the property that Muliki Appa Rao possessed and the property of Muliki Appa Rao with the defendants 2 to 4 have been possessing over which a decree can be executed. 6. The case of both sides is that Muliki Appa Rao and the first defendant were members of a joint family. Ex.B.2 is the registered relinquishment deed executed on 05.09.1968 by the first defendant relinquishing his half share in the joint family properties in favour of Muliki Appa Rao. Ex.B.1 is a registered settlement deed dated 10.03.1981 under which late Muliki Appa Rao settled of his estate in favour of his wife-fourth defendant and his children defendants 2 and 3. While so, the debts covered by Exs.A.1 to A.3 were incurred in 1985. 7. The learned counsel for the defendants contended that Muliki Appa Rao had been left with no property by the date of Exs.A.1 to A.3 and that although a decree could be passed against Muliki Appa Rao and the estate of Muliki Appa Rao in the hands of defendants 2 to 4, Muliki Appa Rao had left no property to the defendants 2 to 4 on or after he executed Exs.A.1 to A.3. The learned counsel for the defendants contended that where there were no properties for the plaintiff to proceed against, the decree itself become unenforceable. 8. He, however, mainly contended that Ex.B.1 settlement deed was for Ac.6.75 ½ cents and a house site and that Muliki Appa Rao had only Ac.6.75 ½ cents and the house site in his possession by the date of Ex.B.1. The learned counsel for the defendants contended that the whole of this property was settled by Muliki App Rao in favour of defendants 2 to 4 and that he did not have any other property. He reported no objection for the decree holder to proceed against other properties of Muliki Appa Rao, if any. In this context, it may be pointed out that Ex.B.1 includes house property, apart from Ac.6.75½ cents of agricultural land. 9. Curiously, in the judgment it was recorded by the learned trial Judge that late Muliki Appa Rao possessed Ac.8.00 cents of land and that even if Ac.6.75½ cents of land covered by Ex.B.1 is excluded, the decree holder still can proceed against the balance of Ac.1.25 cents of land, which would be sufficient to satisfy the decree. 10. The learned counsel for the defendants contended that the decree holder/plaintiff cannot proceed against the property of Ac.6.75½ cents and the house property settled by late Muliki Appa Rao in favour of defendants 2 to 4 and that the plaintiff might proceed against any other property of Muliki Appa Rao, if Muliki Appa Rao possessed any other property. 11. Sri Deepak Misra, learned counsel for the plaintiff, on the other hand, contended that as many as Ac.8.00 cents was attached before judgment and that the plaintiff was entitled to proceed against the same. I consider that where Muliki Appa Rao executed Ex.B.1 settlement deed in favour of his wife and children about four years prior to the date of the pro-notes, the settlement deed divested Muliki Appa Rao of the property of Ac.6.75½ cents and the house property covered by Ex.B.1. Section 52 CPC empowers a decree holder to proceed against the legal representatives of a judgment debtor subject to the condition that the legal representatives have been holding the estate of the judgment debtor. By the date of the decree, Muliki Appa Rao did not own the property covered by Ex.B.1. The properties in the hands of defendants 2 to 4, therefore, cannot be considered to be the property of Muliki Appa Rao in the hands of his legal representatives. These properties were settled in favour of the defendants 2 to 4 when Muliki Appa Rao did not even borrow the monies let alone a decree was passed against him. Consequently, to the extent of the property covered by Ex.B.1, the plaintiff cannot proceed against the defendants 2 to 4. 12. This is a patent legal position. The learned counsel for the defendants, however, submitted that there was no clarity in the judgment of the trial Court that the plaintiff could not proceed against the property covered by Ex.B.1 and that the defendants laid the present appeal so as to obtain clarification on this issue. As already pointed out by me, the plaintiff cannot proceed against the property, which Muliki Appa Rao voluntarily divested of himself way back in 1981. Consequently, the clarification sought for by the defendants deserves to be issued. 13. The learned counsel for the plaintiff contended that the plaintiff must be able to proceed against other property of Muliki Appa Rao, if any. Indeed, the plaintiff shall be entitled to proceed against the other properties of Muliki Appa Rao, excluding the property covered by Ex.B.1, if Muliki Appa Rao possessed any other properties subject to the condition that the person, who is in possession of such property, should be put to notice by the plaintiff. If other properties belonging to Muliki Appa Rao have been in the possession of the defendants, the plaintiff can proceed against such properties other than the property covered by Ex.B.1. 14. Accordingly, the Appeal Suit is ordered. The decree passed by the trial Court in favour of the plaintiff in respect of the money claim is confirmed. It is also clarified that the decree is executable against the defendants 2 to 4 to the extent of the property of Muliki Appa Rao in their hands excluding the property covered by Ex.B.1. No costs. _________________ K.G. SHANKAR, J Date: 14.11.2011 Isn