TUMMURI SURYANARAYANA Vs. JAGATHA SESHAGIRI RAO

JUDGEMENT

(1.) This appeal arises out of a judgment and decree of the Sub-Court, Amalapuram O.S.No. 46/79, dated 21st, March, 1985.

(2.) The second defendant is the appellant is this appeal.

(3.) The first respondent herein filed O.S.No. 46/79 on the file of the Sub-Court, Amalapuram for recovery of an amount of Rs. 11,000/- on the basis of a mortgage said to have been executed by one late Rachakonda Satyanarayana, the first defendant in the suit on 30-8-1967. While the first defendant remained ex parte, the appellant herein who is a purchaser of the rice mill formed part of the mortgage deed in the auction conducted by the Court in execution of the decree in O.S.No. 3/66, dated 13-2-1969 contested the suit by filing a written statement that the mortgage deed is sham and nominal and was brought into existence to defeat is the rights of him under O.S.No. 1/58 on the file of District Munsif, Amalapuram which was renumbered as O.S.No. 3/66 after remand by the appellate Court and was decreed against the first defendant personally and against the joint family properties of all the other sons including the third defendant herein by its judgment and decree dated 13-2-1969, which was later confirmed by the Sub-Court, Amalapuram in A.S.No. 61/69 by its judgment and decree dated 16-6-1973, Nextly, contended that the suit document was brought into existence in violation of the undertakings given by the first defendant in I.A.No. 973/88 wherein he undertook not to alienate the mill pending disposal of the suit filed by him and Ex. B-5, dated 8-11-1958 and another undertaking given by him to the same effect in I.A.No. 7/64 and Ex. B-6, dated 5-2-1964 and the action of the first defendant which are having the same legal effect as a attachment before decree ordered by the Court under Section 64 of CFC and he has to be treated as preferred-creditor. It is also his case that Defendant No. 3 the son of the first defendant fifed O.S.No. 55/65 in Sub-Court, Amalapuram, against the first defendant and other family members seeking partition of the family properties including the rice mill in question was pending by the time of the execution of the mortgage deed, dated 30-8-1967 which was later decreed by the judgment and decree of the Court dated 12-1-1970 wherein the plea of the first defendant on the debt in favour of the plaintiff was disbelieved. Hence, it is difficult to believe that the respondent herein lent an amount of Rs. 11,000/- during pendency of the suit filed by him as well as the suit filed by his son for partition. He nextly contended that in the E.P. filed by him for execution of the decree in O.S. No. 3/66 the respondent herein filed a claim-petition in E.A.No. 71/79 and the same was dismissed on 23-6-1979. At any rate, the suit was filed by the respondent herein long after 12 years after execution of the alleged mortgage deed just one day prior to the expiry of the limitation. He also contended that even assuming without admitting that the mortgage deed is true and valid, the same can be executed against the first defendant alone as the properties are being joint family properties and as the major sons of the first defendant did not join the execution of mortgage deed, he is entitled for a decree for the sale of 1/4th share of the joint family property in discharge of his mortgage debt, as there is no obligation on the part of the sons of the defendant to discharge the mortgage debt. He also contended that in the event of the decreeing the suit equities has to be worked out and the respondent herein have to first proceed against item No. 1 of the plaintschedule for relization of his decree-debt and if any balance is there then only he may be permitted to proceed against item No. 2, the rice mill in his possession, as he being a bona fide purchaser for value having purchased the same in execution of a Court decree which prevails over the mortgage deed. The suit was filed against the first defendantand himself without impleading the sons of the first defendant is bad for non-joinder of necessary parties. The first defendant is a small farmer and he is entitled to the benefit of Act 7/71 under which the suit debt is to be treated as abated. Hence, the suit is liable to be dismissed with exemplary costs against him.