- (1.)These two revision petitions arise out of proceedings in execution in O.S.No. 338 of 1972 on the file of the Court of the Subordinate Judge, Vijayawada. Chevaturi Rajyalaksbmi, the plaintiff filed this suit against her WP No. 3261 & 4895 of 1978 dt. 26-6-1979 sons Ch. Narayana Rao and Ch. Sriaivasa Rao, defendants land 2 respectively, for recovery of possession of the plaint Schedule property after ejectiag the defendants therefrom and for past and future mesne profits. The suit was resisted by the defendants. The learned Subordinate Judge decreed the suit for eviction and further directed separate enquiry for ascertaining the mesne profits under Order XX Rule 12 C.P.C. The plaintiff filed an application I.A.No. 650 of 1976 on 4-3-1976 for ascertainment of mesne profits and for a final decree for the amounts found due. Both the defendants preferred appeal to the High Court against the judgment and decree of the trial court and obtained stay of all further proceedings.
(2.)Prior to the institution of the suit, the plaintiff had executed a registered settlement deed Ex. A-2 dated 21-8-1966 settling the plaint schedule property on her elder son Chevuturi Narasimha Rao and reserving life est ate in her. Later, on 29-10-1976 the plaintiff executed a registered ralinquisment deed Ex. A-3 relinquishing her life interest in the plaint schedule propetrty in favour of Narsimha Rao after receiving consideration from him The plaintiff died on 31-12-1976. The High Court dismissed the appeals filed by the defendants on 22-3-1977 as not pressed by the defendants. Claiming to be the absolute owner of the plaint schedule property by virtue of the relinquishment deed Ex. A-3 Narasimha Rao filed E P. No. 78 of 1977 on 26-3-1977 to substitute him in the place of the deceased plaintiff in the execution proceedings and to order delivery of property to him. The defendants filed I.A. 652 of 1977 stating that the settlement deed Ex. A-2 and the relinquisbment deed Ex. A-3 were not binding, that the decree had become infructuous, and that Narasimba Rao had no right to continue the execution proceedings. Then Narasimha Rao filed I.A. No. 2159 of 1977 in E.P No. 78 of 1977 under Section 146 C.P C. to add him as the Legal Representative of the deceased plaintiff and to permit him to continue the final decree proceedings in I.A. No. 650 of 1976. By a common order dated 5-6-1978 the learned Subordinate Judge allowed I.A. No. 2159 of 1977 and permitted Narasimha Rao to continue the proceedings in E P. No. 78 of 1977 as the Legal Representative of the deceased decree-holder. The second defendant has preferred these revision petitions against the common order in I.A. No. 2159 of 1977 and E.P. No. 78 of 1976. Ch. Narasimha Rao, the petitioner in the application is the sole respondent herein.
(3.)The first question that arises is whether the respondent Narasimha Rao has the right to execute the decree obtained by the deceased decree-holder, Rajyalakshmamma. It is contended by the learned counsel for the petitioner that the respondent was not a party to the suit, nor is he a legal representative, that the cause of action was personal to the plaintiff and disappeared on her death and that the respondent could only file a suit and establish his title. According to the learned counsel the right to sue abated on the death of the plaintiff and the application filed by the respondent was not maintainable either under Section 146 C.p.C. or under Order 21 Rule 16 or Order 22 Rule 10 C.P.C. On the other hand, the learned counsel for the respondect submits that the petitioner represents the estate by virtue of the terms of the will Ex. A-2) that the suit was filed in a representative capacity on behalf of the plaintiff and the respondent-the holder of the vested remainder. In any case, it is urged that the respondent is the legal representatives of the plaintiff within the meaning of Section 2 (11) C.P.C.