MERLA RAMANNA Vs. NALLAPARAJU

JUDGEMENT

(1.) This is an appeal by special leave against the judgment of the Madras High Court in a second appeal which reversed the concurrent judgments of the Court below, and granted, a decree in favour of the respondents for partition and possession of 126 acres 33 cents out of a parcel of land of the extent of 503 acres 18 cents in the village of Kalvacherla and of 10 acres 12 cents out of a parcel of land of the extent of 40 acres 47 cents in the village of Nandarada, with mesne profits, past and future. All these lands measuring 543 acres 65 cents were purchased by five co-shares on 5-6-1888 under two sale deeds, Exs. P. and P-1. One of these shares of the extent of about 218 acres was at the material dates, held in Common by two brothers, Rangaraju and Kumara, the former owning 136 acres 45 cents and the latter 81 acres 45 cents. On 19-8-1908 Kumara executed a simple mortgage; Ex. Q, over 81 acres 45 cents belonging to him for Rs. 1,000 in favour of Nallapparaju, who with his undivided brother, Arhutaramaraju, held a share in the two parcels of land aforesaid in Kalavacherla and Nandarada. On 19-7-1909 both Rangaraju and Kumara executed a mortgage, Ex. A, for 2,000 over all the 218 acres belonging to them in favour of Achutaramaraju. On 4-6-1910 Kumara again created a mortgage over 81 acres 45 cents belonging to him, Ex. Q-1 for Rs. 2,500 in favour of Achutaramaraju. On 14-2-1911 Achutaramaraju executed a mortgage for Rs. 14,000 in favour of one Merla Agastayya, Ex. C, over the properties which he held in full ownership as co-sharer, and also the mortgage right which he held over the properties belonging to Rangaraju and Kumara under the three mortgage deeds, Exs. Q,and Q-1. On 29-8-1920 Kumara sold the 81 acres 45 cents belonging to him and comprised in the mortgages aforesaid to Achutaramaraju for Rs. 11,000 as per Ex. G. and thereby the two deeds, Exs. Q and Q-1 became completely discharged and Ex A to the extent of the half share of Kumara.

(2.) On 20-1-1924 the representatives of Merla Agastayya assigned their interests in the mortgage, Ex. C, to the present appellant, who instituted O. S. No. 25 of 1927 or the file of the Court of the Subordinate Judge of Kakinda to recover the amount due thereon by sale of the hypoteca. Achutaramaraju, the mortgagor, and the members of his family were defendants 1 to 3 in that suit. Kumara was impleaded as defendant 14 and Rangaraju and his son as defendants 15 and 16. In the plaint, it was alleged that the properties comprised in the mortgage deed, Ex. C. consisted of the properties belonging to the mortgagors in full ownership as co-sharers and also of the mortgage right under Exs. Q, A and Q-1. Then there was an allegation that defendants 1 to 4 had themselves purchased the mortgaged properties "towards discharge of defendant 1's mortgage debts." As a statement of fact, this was not accurate, because the purchase by Achutaramaraju was only of 81 acres 45 cents belonging to Kumara and the remaining properties continued to be held by Rangaraju, and Achutaramaraju was only a mortgagee thereof under Ex. A. There were the further allgations that defendants 14 to 16 were impleaded as parties because they were in possession of the properties and that they were the predecessors-in-title in respect of the properties which were mortgaged under Exs. Q, A and A-1. Then there was the general prayer for the sale of the properties.

(3.) The mortgagors, defendant 1 to 4, entered into a compromise with the plaintiff, while defendants, 14 to 16 remained 'ex parte. On 31-1-1931 the suit was decreed in terms of the compromise as against defendants 1 to 4 and 'ex-parte' as against defendants 14 to 16 and a final decree was passed on 6-11-1932. On 23-8-1934 the decree-holder file E. P. No. 99 of 1934 praying for the sale of the hypotheca including the properties mentioned in Ex. A. Defendants 15 and 16 then intervened and filed an objection to their being sold on the ground that the mortgage had been discharged in 1923, and that the 'ex-parte' decree against them had been obtained fraudulently. This application was rejected by the Subordinate Judge on 26-8-1935, and as appeal against this order to the High Court Madras was also dismissed on 1-9-1938. Meanwhile, 163 acres 18 cents out of the properties mortgaged under Ex. A, of which 81 acres 861/2 cents belonged to Rangaraju were brought to sale on 14th and 15th April 1936, and purchased by the decree-holder himself. The sale was confirmed on 26-6-1936, and possession taken on 15-12-1936. But before possession was taken, on 14-12-1936 Rangaraju and his sons instituted O. S. No. 268 of 1936 in the District Munsif's Court Rajahmundry for a declaration that the decree in O. S. No. 25 of 1927 had been obtained fraudulently, and that the decree-holder was not entitled to execute the decree as against their properties. An objection was taken to the Jurisdiction of the Court of the District Munsif to try this suit, and eventually, the plaint was returned to be presented to the proper Court. Thereupon, they instituted on 7-8-1939 the present suit, O.S. No. 39 of 1939 on the file of the District Court, East Godavari for a declaration that the decree in O. S. No. 25 of 1927 was obtained by suppressing service of summons and was, therefore, void and could not affect their title of 136 acres 45 cents which were mortgaged under Ex. A. The suit was transferred to the Court of the Subordinate Judge of Rajahmundry, and was numbered as O. S. 79 of 1940.