Judgment

ALAGIRISWAMI, J.:- Venkanna, the father of the appellants had a brother Ramamurti who died childless in the year 1908 leving behind him his widow Narasimham. After Ramamurthi s death a series of litigations started between Venkanna and Narasimham and it is not over yet. Venkanna filed O. S. No. 14 of 1943 against the widow in respect of acts of waste committed by her of Ramamurti s estate and was appointed a receiver in that suit. In that suit he got a decree against Narasimham for a sum of Rs. 13,539/- as she failed to furnish security as originally decreed by the court, Venkanna as receiver filed three suits on the foot of three mortgages in favour of Ramamurti. One was O. S. No. 24 of 1916. In execution of that decree item 1 of the A Schedule properties was purchased in court auction. O. S. No. 443 of 1918 was filed on the foot of another mortgage in favour of Ramamurti executed in 1904 and items 2 and 5 of the plain schedule properties were purchased in execution of decree in that suit. These three items of properties are the subject matter of this appeal. It is unnecessary for the purpose of this appeal to refer to the third suit.

2. Venkanna died in 1947 and Narasimham in 1951 after executing a Will bequeathing in favour of her brother Venkata Sattayya all her properties. Venkata Sattayya filed the suit, out of which this appeal arises, for possession of the properties bequeathed to him under the will and for mesne profits. The Subordinate Judge who tried the suit held that items 1, 2 and 5 became accretions to the main estate of Ramamurthi and therefore the plaintiff was entitled only to an account of the income from those properties till the death of Venkanna. The appeal against the Subordinate Judge s judgment came up for hearing before Justice Satyanarayana Raju and Justice Venkatesam of the Andhra Pradesh High Court. The learned Judges called for a finding with regard to the interest on the two mortgages in execution of the decress in which items 1, 2 and 5 had been purchased, relating to the period before Ramamurti s death and the period after Ramamurti s death. After finding was received they allowed the appeal in part and held that the plaintiff would be entitled to a 19/34th share of item 1, and 12/23rd share of items 2 and 5. This appeal is filed in pursuance of a certificate granted by the High Court.

3. Mr. Ramasesheya Chaudhari appearing behalf of the appellants raised four points which we shall deal with seriatim.

4. The learned Judges of the High Court committed an error in confining the appeal after receipt of the finding from the Subordinate Judge s court only to the question of the share, which the appellants and the respondent were entitled to, based on the calculation of the interest due on the moretgages before and after the death of Ramamurti. His contention was that as the High Court had merely framed issued and referred them for trial to the court of first instance under Order XLI Rule 25 of the Code of Civil Procedure and not remanded the whole case under Order XLI R. 23, they should have heard the whole appeal and not confined the hearing merely to the points on which the finding was called for. We think that he is right in this contention. Before the High Court the learned advocate for the appellants had contended that Narasimham owed to the estate of Ramamurti a sum of Rs. 14,639/- and that when the decree was sought to be executed by Venkanna, Narsimham claimed that the amount due to her by way of interest under the three mortgage bonds should be set off and that the execution could proceed only for the balance, that the set off claimed by Narsimham was actually allowed and that therefore she would not be entitled to any share in the properties purchased in execution of the decrees obtained on the foot of the mortgage bonds, in lieu of the interest claimed. The learned Judges disallowed him from raising that question on the ground that it was not raised or argued at the time when the f