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Madras High Court
Edupuganti Buchayya And Anr.
Versus
Edupuganti Sriramamma
Decided On : 12 December, 1930
Res Judicata - Execution Petition - The court held that the question of whether payment should be in money or kind is res judicata based on a previous order. The court also addressed the executability of a decree creating a charge and the necessity of attaching the property to be sold.
Fact of the Case:
The court addressed the question of whether payment should be in money or kind, the executability of a decree creating a charge, and the necessity of attaching the property to be sold.
Finding of the Court:
The court dismissed the appeal with costs.
Issues: The issues involved the executability of a decree creating a charge and the necessity of attaching the property to be sold.
Ratio Decidendi: The court held that the question of payment being in money or kind is res judicata based on a previous order. The court also found that the decree creating a charge can be executed by sale without a fresh suit, and there is no necessity to attach the property to be sold.
Final Decision: The appeal was dismissed with costs.
1. So far as the amount covered by this execution petition is concerned, the question whether payment should be in money or kind is res judicata by reason of the order in E.P. No. 32 of 1928.
2. For the judgment-debtors Mr. Lakshmanna contends that the decree, so far as it creates a charge, is not executable but can only be the basis of a further suit for sale. That is against the decision in Sowbagia Ammal v. Manicka Mudaliar [1917] 42 I.C. 975, where the decree was in similar terms to that in this suit: see also Muttia v. Veerammal [1887] 10 Mad. 283 at p. 287 and Minakshi v. Chinnappa [1901] 24 Mad. 689 at p. 694 Mr. Lakshmanna has a further contention that, even if the charge can be executed by sale without a fresh suit, the land charged must first be attached. No authority for that proposition can be cited and to require attachment of the property to be sold is inconsistent with the sale in execution of property mortgaged or charged. The mention of attachment in the head note to the report of Soubagia Ammal v. Manicka Mudaliar is a mistake. Apparently the decree-holder wished to attach the property, but the learned Judges did not suggest anywhere in their judgment that it was necessary.
3. This appeal is dismissed with costs.
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