KOPPULA VENKATASWAMI Vs. KUKKAPALLI POLAYYA

JUDGEMENT

(1.) .These two appeals are preferred against the Judgment of the Subordinate Judge, Nellore, confirming the Order of the District Munsif directing execution to proceed in E.P. No. 541 of 1952 in O.S. No. 679 of 1940 and E.P. No. 542 of 1952 in O.S. No. 380 of 1939. The relevant facts are these :- One Kukkapalli Polayya obtained a decree in O.S. No 679 of 1940 on the file of the District Munsif, Nellore, against Koppolu Venkataswami on 2nd August, 1941. The said Koppolu Venkataswami had filed a suit O.S. No. 380 of 1939 for enforcing a mortgage in his favour executed by one Vinjam Narasappa Naidu and Subbamma and obtained a preliminary decree. The said mortgagors having died after the preliminary decree, their legal representatives, one Kolla

(2.) Chelammayya and Narasamma were brought on record. Kukkapalli Polayya levied execution of his decree in O.S. No. 679 of 1940. In the first instance, he filed E.P. No. 701 of 1941 and obtained rateables and that petition was closed on 21st January, 1942. Then he filed E.P. No. 1184 of 1941 on 24th October, 1941 and attached the mortgage decree obtained by Koppolu Venkataswami in O.S. No. 380 of 1939. It would appear that the preliminary decree was appealed against So, after the passing of a fresh preliminary decree, a fresh attachment was prayed for in E.P. No. 81 of 1945 and it was effected on 25th May, 1945. It was made absolute on 27th September, 1945. Thereafter, he filed I.A. No. 132 of 1947 praying for passing a final decree for the sale of the hypotheca. That petition was ordered on 25th March, 1947, after notice to the legal representatives of the mortgagors and the original decree-holder. He then filed an unnumbered E.P., Exhibit A-3 on 20th March, 1950, which was infructuous. Thereafter, he filed E.P. No. 541 of 1952 for attachment of the moveables of the judgment-debtor. The application for execution was opposed on the ground that the E.P. was barred by limitation on the footing that I.A. No. 132 of 1947 proceedings did not constitute proceedings which could be a step in aid of execution. . The said contention was overruled by the executing Court and by the Subordinate Judge of Nellore in appeal.

(3.) The judgment-debtor in O.S. No. 679 of 1940 is the appellant in C.M.S.A. No. 24 of 1957. The judgment-debtor in O.S. No. 679 of 1940 on the file of the District Munsif's Court, Nellore, who is the decree-holder in O.S. No. 380 of 1939 on the file of the same Court (mortgage decree-holder) purported to transfer the final mortgage decree to one Nagineni Ayyavaru Naidu on 21st March, 1950, by means of a registered deed of transfer. That was obviously after Kukkapalli Poliah, the decree-holder in O.S. No. 679 of 1940 had attached the preliminary mortgage decree and obtained a final decree for the sale of the hypotheca on 25th March, 1947. On the basis of the transfer he applied for the sale of the hypotheca in E.P. No. 269 of 1950 in O.S. No. 380 of 1939. Thus, it is seen that Kukkapalli Polayya had applied for the sale of the hypotheca in E.P. No. 542 as also Ayyavaru Naidu. Both the Courts below have directed E.P. No. 542 of 1952 to proceed. This order is impugned in C.M.S.A. No. 23 of 1957 by Koppolu Venkataswami and Ayyavaru Naidu.