E MAHBOOB SAHEB Vs. N SABBARAYAN CHOWDHARY

JUDGEMENT

(1.) This appeal by special leave is directed against a judgment of the High Court of Andhra Pradesh in two connected Second Appeals - Second Appeals Nos. 719 and 826 of 1967. Those Second Appeals arose out of a suit filed by the appellant herein for setting aside the summary order passed in E. A. No. 90 of 1958 in E. P. 7 of 1956 in O. S. No. 26 of 1952 on the file of the Sub-Court, Anantapur, and for recovery of possession of plaint 'C' Schedule property or, in the alternative, for partition arid recovery of one-half of the property described in the plaint 'B' Schedule. The plaint 'C' Schedule plot is a southern portion of the property described in the 'B' Schedule.

(2.) The plaint 'B' Schedule property consisting of 1 acre and 90 cents of land together with two houses situated therein belonged to one Allabaksh. He was adjudged an insolvent and the Official Receiver sold a half right in the said property to one Moola Narayanaswamy under Exh. A-3 dated December 6, 1939. The remaining half interest in the property belonging to Allabaksh was also subsequently brought to sale by the Official Receiver and one J. Narasimhulu became the purchaser. Exh. A-27 dated January 5, 1945 is the sale certificate issued in his favour. The resultant position was that the 'B' Schedule property came to be owned in undivided half shares by Moola Narayanaswamy and J. Narasimhulu. Subsequently, Narasimhulu transferred his interest in the property in favour of the plaintiff for a consideration of Rs. 4,000 under Exh. A-1 dated May 10, 1948. The plaintiff is the daughter of Moola Narayanaswamy.

(3.) One Nagappa (first defendant) obtained a simple money decree against Moola Narayanaswamy in O. S. 26/62 on the file of the Subordinate Judge's Court Anantapur, and in execution thereof, he attached and brought to sale in Court auction the two houses described in the plaint 'B' Schedule property. In the said court auction, the first defendant purchased the plaint 'B' Schedule property for Rs. 2,050 and in enforcement of the sale certificate, he obtained delivery of possession of the two houses. Since the judgment-debtor, Narayanaswamy, was entitled to only a half interest in the property, the plaintiff filed E. A. No. 90/58 in the Executing Court under O. 21, R. 100, C.P.C., asserting her independent right to the southern half of the property and praying for redelivery of the said portion in her favour. That petition was dismissed by the Sub-Court, Anantapur, by order dated March 11, 1960, and hence, the plaintiff brought the suit out of which this appeal has arisen for setting aside the said summary order and for recovery of possession of the southern portion of the property which is described in the plaint 'C' Schedule.