VEMULASIVIAH NAIDU Vs. STATE OF ANDHRA PRADESH

JUDGEMENT

(1.) The appellant is the auction-purchaser of 5.86 acres in Peddayyasamudram village in Nellore District. The said land was brought to sale on November 2, 1967 to realise the debt due to the Govt. from one K. Sankaraiah, the brother of K. Radhakrishnaiah, the respondent-plaintiff. The appellant had purchased the same in the said auction. he was granted the sale certificate on April 31, (sic) 1969 under Ex. B-1. Later, the second respondent, Radhakrishnaiah filed the suit for setting aside the sale. The trial Court discussed the suit. On appeal, the District Judge confirmed the same. In Second Appeal No. 632/77 by judgment and decree dated February 28, 1979, the learned single Judge of the High Court of Andhra Pradesh decreed the suit. Thus, this appeal by special leave.

(2.) The admitted facts are that K. Sankaraiah, the debtor and the second respondent are members of the joint family. At a partition dated July 28, 1954 under Ex. B-13, Radhakrishnaiah was granted a greater share since he had undertaken to discharge all the liabilities on the joint family properties including the debt contracted by Sankaraiah from the Government under a mortgage. The contention raised by the second respondent, which was found acceptable by the High Court, was that since he was not a defaulter within the meaning of Section 5 of the A.P. Revenue Recovery Act, 1894 (1864) (for short, the Act), the property belonging to the respondent could not be brought to sale. In support thereof, the learned Judge has relied upon another judgment of that Court in Chatrati Sriramamurthi v. Official Receiver Krishna (1957) 1 Andh WR 216. The question is:whether the view taken by the High Court is correct in law The learned District Judge recorded a finding, which was also accepted by the High Court, that the properties are joint family properties hypothecated to the Government for securing the loan by Sankaraiah. The second respondent under Ex. B-13 had taken bulk of the properties including the suit schedule property allotted to him in the partition with an undertaking "to discharge all the liabilities of the erstwhile joint family including the loan obtained from the Government". Thus, the question arises:whether the second respondent is a defaulter within the meaning of Section 5 of the Act Section 5 reads as under:

(3.) It is to remember that the word defaulter connotes the person who is liable to discharge the debt. In view of the fact that the joint family property was hypothecated to the Government for recovery of the debt taken by K. Sankaraiah and the second respondent had undertaken to redeem the debt taken by Sankaraiah and the partition was subject to the above undertaking, the property is liable to be proceeded for recovery of the debt contracted upon it. As a consequence, the second respondent is a defaulter for the purpose of Section 5 of the Act,