REDDI VEERRAJU Vs. CHITTORI LAKSHMINARASAMMA

JUDGEMENT

(1.) Appeal No.28 of 1967 arises out of the Judgment in O.S. 53 of 1964 on the file of the Subordinate Judge, Rajahmundry passing a preliminary decree in favour of the plaintiff in terms thereof. Appeal No. 381 of 1967 and the un-numbered appeal (SR1448/67) are directed against the decision in O.S. No.54 of 1964 passing a preliminary decree. 2nd defendant in O.S.No.53 of 1964 preferred appeal No.28 of 1976; defendants 2 and 3 in O.S. No.54 of 1964 and the 6th defendant the very same suit preferred appeal NO.381/67 and the un-numbered appeal respectively.

(2.) The plaintiff instituted O.S. No.53 of 1964 for recovery of Rupees 14,000/- on the foot of Ex. A-2 dated 4-1-1952, a registered mortgage deed executed by the 1st defendant; and O.S. No.54 of 1964 for recovery of a similar amount of Rs. 14,000.00 on the foot of Ex. A-1 mortgage executed on the same date i.e., 4-1-1952 by the 1st defendant for himself and on behalf of his minor sons, defendants 2 and 3. Though the defendants are different in each of the two suits, the plaintiff (1st respondent in these appeals) is common to both the suits. As the defenses raised by the contesting defendants in each of the two suits were substantially the same, the two suits were tried together with the consent of parties and the evidence recorded in O.S. No.54 of 1964 was treated as evidence in both the suits.

(3.) The case of the plaintiff as narrated by her, in O.S. No.53 of 1964 is that the 1st defendant, in partnership with others as partners, established a rice mill called "Veera Venkata Satyanarayana Rice Mill" at Someswaran. For the purpose of the partnership business, he borrowed moneys from the plaintiffs husband and executed promissory notes on 5-6-1950. He also borrowed moneys from the second son of the plaintiff under another promissory note dated 16-5-1950. As the 1st defendant was unable to discharge the debts due under the promissory note, he borrowed Rs. 12,658.00 from plaintiff and executed the mortgage bond (Ex.A-2) dated 4-1-952 hypothecating the properties shown in the schedule thereto. The 1st defendant in O.S. No.54 of 1964, who is also a partner of the firm, borrowed Rs. 9,242.00 and executed Ex. A-I on behalf of himself and on behalf of his two minor sons defendants 2 and 3. The 2nd defendant in O.S.No.53 of 1964 is the subsequent purchaser of item (1) of the plaint schedule properties at a court sale held by the Receiver in O.S. No.56 of 1957 on the file of the Sub-court Rajahmundry, It is the plaintiffs case that the sale was subject to the mortgage and therefore she is entitled to proceed against the share of the 1st defendant in item (1) of the plaint schedule properties; or, in the alternative to proceed against the 1st defendants share of the sale proceeds which have been deposited into Court to the credit of O.S. NO.56 of 1957.