BONDA MARY Vs. SIMHAGIRI CHITS FUNDS PVT LTD

JUDGEMENT

(1.) Judgment debtors in E.P.No.104 of 2003 in O.S.No.933 of 1997 on the file of the Court of the Principal Senior Civil Judge, Visakhapatnam, are the petitioners in the present Civil Revision Petition. The present Revision challenges the order dtd. 30/1/2006 passed by the Court of the Principal Senior Civil Judge, Visakhapatnam, in E.A.No.293 of 2004 in E.P.No.104 of 2003 in O.S.No.933 of 1997. Respondent No.1 herein is the Decree Holder and respondent No.1 herein instituted O.S.No.933 of 1997 on the file of the Court of the Principal Senior Civil Judge, Visakhapatnam, against (1) Sri Bonda Nageswara Rao, S/o.Atchannaidu, (2) Sri Bonda Raghunath, S/o.Nageswara Rao and (3) Smt. Bonda Mary, W/o.Nageswara Rao, for recovery of a sum of Rs.1,77,713.00 on the foot of a chit fund transaction, wherein defendant No.1 joined as a member and defendant Nos.2 and 3 stood as guarantors. Pending O.S.No.933 of 1997, plaintiff/decree holder/respondent No.1 herein filed I.A.No.1004 of 1997 under the provisions of Order 38 Rules 5 and 6 of the Code of Civil Procedure, 1908 (C.P.C.), and the trial Court on 13/11/1997, passed a conditional order of attachment and the same was made absolute on 16/7/1997.

(2.) Sale notice was published on 22/10/2002, proposing the sale on 14/11/2002, and on which date, sale was conducted and respondent No.2 herein, Mr. Kata Venkata Reddy stood as highest bidder and the bid was knocked down in his favour for Rs.14,50,000.00 and the sale was confirmed on 30/1/2006 and the sale certificate was also issued on 19/4/2006. Pending E.P.No.104 of 2003 (Old E.P.No.573 of 2000), M/s. Kalyani Constructions, represented by its Managing Partner Smt. Rajamudili Sujatha filed E.A.No.674 of 2002 (New E.A.No.29 of 2003) on 8/11/2002 against the decree holder, judgment debtors (petitioners herein) under Sec. 47 of the C.P.C. on the ground that the petitioners herein sold two items of the property by way of registered sale agreement-cum-general power of attorney on 12/1/2001. Schedule of the said E.A.No.674 of 2002 (New E.A.No.29 of 2003) is as follows:-

(3.) The decree holder/respondent No.1 herein contested the said E.A.No.674 of 2002 by way of filing counter. The said E.A.No.674 of 2002 was dismissed as not pressed on 16/9/2004. One day after the dismissal of E.A.No.674 of 2002 as not pressed, i.e., on 17/9/2004, one Smt. Thota Vijayalakshmi, represented by her general power of attorney-cum-sale agreement holder, M/s. Kalyani Constructions, represented by its Managing Partner, Smt. Rajamudili Sujatha filed E.A.No.367 of 2004 under the provisions of Order 21 Rule 58 C.P.C. against the decree holder, auction purchaser (respondent No.2 herein) and the petitioners herein. In this context, it may be pertinent to note that Smt. Thota Vijayalakshmi is a daughter of defendant No.1, late Sri Bonda Nageswara Rao and petitioner No.1 herein. The said E.A.No.367 of 2004 was contested by the decree holder by way of filing counter. The learned Principal Senior Civil Judge, Visakhapatnam, by way of an order dtd. 3/8/2005, dismissed the said E.A.No.367 of 2004. Petitioners herein represented by their general power of attorney-cum-sale agreement holder, M/s. Kalyani Constructions, represented by its Managing Partner, Smt. Rajamudili Sujatha, on 16/9/2004, filed E.A.No.293 of 2004 under Sec. 47 of the C.P.C. against the decree holder and the auction purchaser, arraying them as respondent Nos.1 and 2 in the said application for the following reliefs:-