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1. The second defendant in O.S. Nos. 5/1976, 359/ 1979 and 267/1981 filed by Lingala Venkataratnamma and the second defendant in Interpleader Suit in O.S. No. 357/ 1980 filed by Doddi Buli Veerraju, filed these Second Appeals.

2. While late Lingala Venkataratnamma filed three suits referred above, for recovery of the rents over the suit schedule properties from Doddi Buli Veerraju, the tenant over the lands, claiming that they are the owners of the land. He filed Interpleader Suit in O.S.No. 357/1980 seeking a decision as to which of the defendants in his suit, i.e., late Lingala Venkataratnamma and Rajeswaramma on one side and Hanumanthavajhula Jagannadha Sastry, the appellant herein, on the other side are the real owners and to whom he has to pay the rents. During the pendency of the suit, Lingala Venkataratnamma died and her daughter Vajhula Annapurna Rajeswari (hereinafter referred to as 'Rajeswaramma') was brought on record as second plaintiff in all the three suits filed by Lingala Venkataratnamma and as third defendant in the Interpleader Suit filed by Doddi Buli Veerraju,

"Questions as to excess execution where property not included in or covered by the decree is delivered in execution of the decree, there arises a situation which, in law is called 'action in excess of the decree'. In such cases the proper remedy for the judgment debtor to recover the property delivered in excess of the decree is by an application under Section 47 of Code of Civil Procedure and not by a separate suit."

36. Second Appeal No. 98/1996 arises out of the Interpleader Suit in O.S. No. 357/ 1980 filed by the tenant, Section 88 of the Code of Civil Procedure read with Order 35, Rule 5 deal with the filing of Interpleader suit. It is useful to extract the same:

39. Having taken such a stand, it is not known how he can file Interpleader suit compelling the appellant to interplead with the plaintiffs, who are not claiming any interest through H. J. Sastry in the suits.

40. In fact, the judgment cited by Mr. G. Krishna Murthy, learned Counsel appearing for the tenant supports the case of Adyanath Ghatak v. Krishna Prasad Singh and Anr., AIR (36) 1949 PC 124, wherein, it was held that:

"a symbolic delivery of possession of property found to be in occupation of a tenant or the judgment debtor effectively terminates both the judgment debtor and the tenant"
"However, we do not think that the plaintiff can get out of the difficulty arising from Rule 5 in this way. Section 116, Evidence Act, seems to be the answer to this argument also. That rule, as I have said, prevents a tenant from denying the title of the landlord at the commencement of the tenancy. Therefore, he cannot bring a suit in which a claim inconsistent with his landlord's title at that time is to be litigated."

43. From the above, it is crystal clear that the tenant is forbidden to bring Interpleader Suit to compel his landlord to interplead with any person. Hence, on this ground itself, the suit filed by the tenant is not maintainable in law.