MADHAVARAPU HARANADHABAD Vs. KALIGINEEDI MAHALAKSHMAMMA DIED

JUDGEMENT

(1.) This appeal is filed against judgment and decree dated 10-3-1992 in A.S.No.69 of 1985 on the file of 1 st Additional Subordinate Judge at Kakinada confirming order and decree dated 11-7-1985 in E.A.No.879 of 1981 in E.P.No.491 of 1980 in O.S.No.594 of 1980 on the file of III Additional District Munsif, Kakinada. During the pendency of this appeal, first respondent died and third respondent was brought on record as legal representative of deceased-first respondent.

(2.) The appellant is the claimant. The first respondent - plaintiff filed a money suit and obtained a money decree against second respondent. Subsequently she filed an execution petition and attached plaint schedule property on 14-1-1981. The appellant filed a claim application in E.A.No.879 of 1981 requesting the Executing court to raise the attachment over plaint schedule property. He pleaded that he purchased the plaint schedule property under an agreement of sale dated 9-4-1979 from the second respondent judgment debtor and subsequently he obtained a regular registered sale deed Ex.A-1 on 24-7-1980. According to him the plaint schedule property belongs to him and it is not liable to be attached and sold in execution of any decree obtained against the second respondent judgment debtor. Claimant is none other than the brother of the judgment debtor - second respondent. According to the decree holder - plaintiff the sale transaction Ex.A-1 is a sham and nominal transaction and the property belongs to the judgment debtor himself. She resisted the claim application filed by appellant claimant. Both parties adduced oral and documentary evidence before the Executing Court. The Executing Court construed the sale transaction covered by Ex.A-1 as a sham and collusive transaction and refused to raise the attachment in question. It had also taken into consideration the fact that the agreement of sale dated 9-4-1979 was not produced by the claimant. It is to be stated that there is a reference in Ex.A-1 sale deed to the agreement of sale dated 9-4-1979. The fact remains that the agreement of sale was not produced before the Executing Court during the course of inquiry in the claim application. The Executing Court dismissed the claim application by order dated 11-7-1985. Aggrieved by that order, the claimant preferred an appeal before 1st Additional Subordinate Judge at Kakinada. The lower Appellate court concurred with all the findings given by the Executing Court and dismissed the appeal. Aggrieved thereby, the claimant preferred the present appeal.

(3.) At the time of admission of this appeal, the learned admission Judge treated the following points formulated in the memorandum of grounds of appeal as substantial questions of law that arise for consideration in the present appeal.