PINAPAK SATYANARAYANA Vs. SOMU LAKSHMINARAYANA

JUDGEMENT

(1.) This is an appeal preferred against the judgment of our learned brother, Srinivasachari J. in A. S. No. 505 or 1956 affirming the judgment of Subordinate Judge, Vijayawada, in O. S. No. 197 of 1954 and dismissing the appeal.

(2.) The facts of the case, which are not in controversy before us, are these : One Rattayya for himself and as guardian of his then only undivided minor son, respondent 7, had executed a mortgage of his family properties in favour of respondent 1 and one Chintalapudi Pullayya, the predecessor-in-title of respondents 2 to 6, for Rs. 3695.00by and under a registered mortgage deed dated 20-9-1929 for the discharge of debts due by himself partly and by his deceased undivided brother Krishnayya. The mortgagees filed a suit O.S. No. 62 of 1941 on the file of the sub-Ordinate Judge, Vijayawada, to enforce the mortgage against Rattayya and his undivided minor son. His minor son was represented by his mother as guardian. It would appear that after the execution of the mortgage, two sons were born to Rattayya on 21-4-1938 and 26-4-1941; but they were not impleaded in that suit. It was explained as due to the mortgagees being unaware of their birth. The sun was contested by Rattayya and his undivided minor son (respondent 7 herein) who raised the plea that the fleet was not binding on him. There was a preliminary decree on 29-8-1942 exonerating the undivided minor son and decreeing the suit against Rattayyas share of the hypotheca. The said decree was confirmed in appeal with a modification as regards the amount recoverable on the mortgage. A second appeal preferred against the decree was not successful. The mortgagees later on obtained a final decree for the sale of Rattayyas share of hypotheca on 17-2-1948. Rattayya died on 12-12-1945 and his widow was impleaded as his legal representative in the final decree proceedings.

(3.) The mortgagees thereafter brought Rattayyas undivided half share in items 1 and 2 of the mortgage schedule to sale which consisted of certain lands in Duggiralapadu village, Nandigama Taluk, Krishna District, and one of the mortgagees (respondent 1 herein) purchased the properties in execution. Ex. A-15 is the sale certificate dated 28-6-1952 issued in favour of respondent 1, Somu Lakshminarayana, declaring hint as the purchaser. Delivery of possession of an undivided half share of the lands was effected by the Amin on 29-S-1952. The after-born sons of Rattayya were not made parties to the said execution proceedings.