DEVURI APPALA RAJU Vs. KOLLI RAMAYAMMA

JUDGEMENT

(1.) In this case, the petitioner assails the order passed by the First Additional Subordinate Judge, Visakhapatnam in E A No. 208 of 1973 in E P No. 344 of 1969 in O S No. 18 of 1966.

(2.) The petitioner is the auction purchaser of the house property belonging to the judgment debtor. The purchase was made in pursuance of a decree in O S No.18 of 1966. The sale was held on 23-12-1970 in E P No 344 of 1969. No claim petitions were filed. The sale was, therefore, confirmed. Full satisfaction was recorded. The auction purchaser, therefore, filed E.P. No. 476 of 1971 for delivery of possession of the property. The Court allowed the petition and effected delivery of possession on 6-12-1971. On 6-11-1973 the present petition, E.A. No. 208 of 1973, was filed under Section 47 of the Civil Procedure Code by the first defendant, the widow of one Jaggarao, who contracted the debt from the decree-holder. She contends that the debt was borrowed by her husband and the decree-holder- plaintiff ought to have filed the suit against the legal representatives of the deceased debtor for the recovery of the suit debt from out of the assets of late Jaggarao in the hands of his legal representatives but mischievously claimed in the plaint the relief for personal decree and also against their personal properties contrary to the provisions of Section 52 C.P.C. that unfortunately, the trial Court passed a personal decree and also a decree against their personal properties.

(3.) The decree was executed under E.P. No. 344 of 1969 and the sale in respect of the suit house was held and confirmed. She, therefore, contends that in as much as the property in respect of which the sale was held is the personal property of the first defendant, no decree can be passed against her and her personal properties and hence the sale is null and void. She also contends that the Court has no jurisdiction to pass a decree against her personal property, who is the legal representative of the deceased debtor under Section 52 C.P.C and as such the decree in O.S. No. 18 of 1966 is a nullity. The learned Subordinate Judge accepted the contentions of the petitioner in E.P. No. 344 of 1969 and allowed it and directed the auction purchaser to deliver back the property to the petitioner in E A No. 208 of 1973. Aggrieved with the said order, this revision is filed by the auction purchaser.