VARADARAJA LYENGAR Vs. T LAKSHMINARAYANA SETTY

JUDGEMENT

(1.) Both the above appeals are directed against the Judgment and Decree of the then Second Additional Civil Judge, Bangalore, in O. S. No. 274 of 1964 disposed of on July 19, 1974

(2.) R. F. A No 67 of 1975 is preferred by the legal representatives of defendant-15, who died during the pendency of the litigation, in the Court below. R. F. A. No. 122 of 1975 is preferred by defendant-12 in the said suit.

(3.) The facts leading to the above mentioned suit may he briefly stated as follows: Defendants 1 and 2-one Annaiyappa and B N. Ramaiah, on July 9, 1949, executed a deed of simple mortgage in favour of one T. Lakshminarayana Setty for valuable consideration of Rs. 30,000/- agreeing to pay interest at 12% p.a. Before the registration of the deed of mortgage ; the said defendants 1 and 2 sold part of the mortgaged property to defendants, among others, by separate sale deeds on July 28, 1949. On that day, the deed of simple mortgage earlier executed in favour of T. Lakshminarayana Setty had not been registered. T. Lakshminarayana Setty died probably during insolvency proceedings initiated against him In the result, the Official Receiver appointed in the insolvency proceedings, filed O. S. No. 274/1964 to recover the mortgage amount. There were as many as 22 other defendants than defendants 1 and 2-the mortgagors. However, the suit was not contested by any of the defendants and an ex parte preliminary decree was passed by the Court. Subsequently, on an application made by the plaintiff final decree also came' to be passed. When the plaintiff brought the suit property for sale in execution of the decree, defendants 12 and 15 filed applications in Misc. Case No. 187 of 1967 on the file of the Principal Civil Judge, Bangalore, under Order 9, Rule 13 C.P.C., praying for setting aside the decree that had been passed in the original suit. These applications were allowed by the Court and the entire decree was set aside as against all the defendants. However, in C.R.P. No. 444 of 1970 and 481 of 1970, the Official Receiver, who was acting for the plaintiff, who had been then declared insolvent, challenged the setting aside of the ex parte decree in this Court. This Court allowed the Revision Petition in part. This Court while allowing (he Revision Petition, confirmed the order of the Court below in so far as it set aside the ex parte decree against defendants 12 and 15 only, but confirmed the decree in regard to the other defendants. In the circumstances, the Court below was seized of the matter on remand by the High Court and tried the same against defendants 12 and 15 only.