T VENUGOPAL NAIDU Vs. N TIRUMALA NAIDU

JUDGEMENT

(1.) The petitioner purchased the suit lands from the judgment-debtor, Balamma, under a registered sale deed on 6-7-1966 for a sum of Rs. 6,000.00. The respondent herein filed a suit O. S. No. 111/1966 for specific performance of an agreement of sale executed by the self-same judgment-debtor, Balamma, at she failed to perform her part of the contract in not executing the sale deed. He impleaded the petitioner as the 2nd defendant in the suit. The trial Court did not grant the decree for specific performance, but granted alternative remedy for damages by awarding Rs. 1,000.00 towards damages and Rs. 1,000.00 towards the advance amount paid by the plaintiff. The Court also created a charge over the suit lands, while granting the decree for damages. The Court also held that the sale deed executed by Balamma in favour of the petitioner was not supported by consideration and the petitioner is not a bona fide purchaser and that the lands continued to be in the ownership of the 1st defendant. But the Court held that the petitioner is in possession of the property from 6-7-1966. As against the judgment and decree, the petitioner-2nd defendant filed appeal A. S. No. 130/71, but the same was dismissed. As no second appeal was preferred, the decision in A. S. No. 130/71 became final.

(2.) To recover the amount for which he obtained the decree towards damages instead of the relief of specific performance the decree-holder in O. S. No. 111/66 filed E. P. No. 118/76 and the sale of the property was sought for. The sale was held on 4-7-1977. The decree-holder himself became the highest bidder and the bid was, therefore, knocked down in his favour. The property was sold for Rs. 7,100.00. The petitioner, who was in possession of the property was not a party in the E. P. He, therefore, filed a petition E. A. No. 207/77 in E. P. No. 118/76 under Order 21, Rule 89, C. P. C., having deposited the entire decretal amount together with poundage and solatium and prayed for setting aside the sale held on 4-7-1977. The learned District Munsif set aside the sale after ordering payment of the decretal amount from out of the amount deposited by him. Against this order, an appeal C. M. A. No. 37/79 was filed by the decree-holder in the Sub Court, Tirupathi. The learned subordinate Judge allowed the appeal on the ground that the petitioner has no interest in the property by the date of the sale and he cannot maintain application under Order 21, Rule 89, C. P. C. It is this decision that it now assailed in this revision petition.

(3.) Sri O. Adinarayana Reddy, the learned counsel for the petitioner, contends that when the petitioner is found in possession of the properties in question right from 1966, the trial Court is justified under law to hold that the petitioner was the person having interest in the property and the lower appellate Court is, therefore, not correct in holding that the petitioner is not the person having interest in the property.