K MASTHAN BEE Vs. APPALAGARI VENKATARAMANA

JUDGEMENT

(1.) This civil revision petition is directed against the order dated 14-10-1999 in Civil Miscellaneous Appeal No. 37 of 1999 passed by the learned Additional District Judge, Madanapalle, Chittoor District, whereby he dismissed the appeal confirming the order dated 19-8-1999 in IA No. 76 of 1998 in OP No. 4 of 1998 passed by the learned Principal Junior Civil Judge, Madanapalle, which was filed under Order 39, Rule 1 of the Code of Civil Procedure (for brevity 'the Code') seeking temporary, injunction restraining the 2nd defendant from proceeding with the execution in OEP No. 110 of 1997 in OS No. 270 of 1994.

(2.) The plaintiffs-petitioners are the revision petitioners herein. It is stated that the first petitioner-plaintiff is the wife and the petitioners 2 and 3 are the daughters of the 1st defendant and they filed the suit for maintenance and for creation of charge over the petition schedule property. It is further stated that the first defendant had executed nominal registered mortgage deed in favour of the respondents 2 and 3 - 2nd and 3rd defendants without receiving any consideration, that her husband has no necessity to borrow any sums from other persons and they have not derived any benefit under the mortgage deeds said to have been executed by her husband in favour of the 2nd and 3rd defendants. It is further stated that her husband earns Rs. 50.00 per day attending to agricultural coolie work and claimed Rs. 750.00 as maintenance to for them and further claimed Rs. 25.00 each to the petitioners 2 and 3 for their marriage expenses and that they are entitled to create charge over the plaint 'A' schedule house property. It is also stated that the second respondent-defendant knowing fully about the right of the petitioners for maintenance, filed a suit in OS No. 270 of 1994 before the Principal Junior Civil Judge, Madanapalle in collusion with the first defendant for recovery of the amount said to be due to him under mortgage deed dated 11-2-1987 and 22-9-1987 for Rs. 10,000.00 and Rs. 5,000.00respectively and has obtained ex parte preliminary decree and proceeding with the sale of the said 'A' schedule property in OEP No. 110 of 1997 to knock away the same and, therefore, the said petition was filed to issue an interim injunction to stay all the proceedings in the said OEP pending disposal of the OP.

(3.) The second defendant filed counter denying the allegations and stated that on 11-2-1987 the first respondent borrowed Rs. 10,000.00 from him for construction of existing building and the property was hypothecated to him by the first respondent under a registered mortgage deed dated 11-2-1987, it is further stated that the first respondent purchased the petition schedule property from Ramanadha Chetty in 1986. It is stated that on 22-9-1987 the first respondent borrowed Rs. 5,000.00 from him and executed another mortgage deed, and therefore, he is entitled to proceed with the execution.