B. MAHABOOB BASHA Vs. N. GURURAJA RAO

JUDGEMENT

(1.) The present Appeal arises against the judgment and decree dtd. 2/5/2008 in A.S.No.3 of 2006 on the file of the Court of the Principal District Judge, Kurnool by reversing the judgment and decree dtd. 30/11/2005 passed in EA No.330 of 2005 in E.P.No.132 of 2004 on the file of the Court of the Additional Senior Civil Judge, Kurnool.

(2.) For the sake of convenience, the parties will hereinafter be referred to as arrayed in E.A.

(3.) The facts of the case are that the 1st respondent herein obtained a preliminary decree against the respondents No.2 and 3 in O.S No.218 of 2002 in the Court of Principal Senior Civil Judge, Kurnool for recovery of about Rs.3.00 lakhs under a simple mortgage deed and filed E.P.No.132 of 2004 to realize it by way of sale of a house. The said E.P. was dismissed stating that one Parvathamma purchased the said property on 6/6/1994 under a registered agreement of sale for Rs.2,25,000.00 from the 2nd respondent. As the vendor did not execute the sale deed, she instituted OS No.41 of 1999 before the Court of Principal Senior Civil Judge, Kurnool for specific performance of the said agreement of sale and obtained a decree thereon on 11/4/2000 and sale deed also from the Court on 25/2/2002 and took possession of the property also. As she ever since in continuous possession therefore, she is the absolute owner thereof, sold it on 23/10/2022 under a registered sale deed to both the petitioners/appellants, who have been ever since in possession thereof and they were mutated their names in the municipal records also. It is further stated that the mortgage between the respondents No.1 and 2 was subsequent to the agreement of sale of Parvathmma. So mortgage does not create any right in favour of the 1st respondent is collusive and created to defeat right of Parvathamma.