VISHNUMOLAKALA RAMAIAH Vs. GULLAPALLI KRISHNA RAO

JUDGEMENT

(1.) The 1st respondent herein obtained decree in the trial Court against one V. Venkayya, the husband of the 2nd respondent herein for declaration of his title and for possession of the suit land in O. S. No 3 of 1963 on the file of the Subordinate Judge's Court, Tenali. The husband of the 2nd respondent herein carried the matter in appeal before the High Court in A. S. No 523 of 1965 and on an application for stay of the execution of the decree, a conditional stay order was passed. As the husband of the 2nd respondent herein could not comply with the conditions imposed for staying the execution of the decree obtained in the trial Court, the stay was vacated. Hence, the 1st respondent herein got into possession of the suit land and he was in possession thereof during the year 1968-69 and 1969-70. Thereafter the husband of the 2nd respondent herein succeeded in the appeal before the the High Court. The 1st respondent herein preferred appeal in L. P. A. No. 9 of 197u and sought stay of the execution of the deeree. The High Court by its order dated 12th January, 1970 directed the 1st respondent to deposit Rs. 4,000 ; Rs. 1, 5UO ; Rs. 1,764- 70 ps. and Rs. 5,764 20ps. The High Court permitted the husband of the 2nd respondent herein to withdraw the money so deposited by the 1st respondent herein after furnishing security for Rs. 11,000 to the satisfaction of the trial Court. Accordingly, the 1st respondent herein deposited a sum of Rs. 8,750-50 ps. in the trial Court. The husband of the 2nd respondent filed I. A. No. 548 of 1970 on 13th April, 1970 before the High Court for issue of a cheque for that amount, while offering third party security (his wife) i. e., the 2nd respondent herein for Rs; 11,000. The trial Court accepted the security of the second respondent and her husband on 16th April, 1970 for Rs. 11,000. Both the 2nd respondent and her husband agreed to pay a sum of Rs. 11,000 to the 1st respondent herein when the natter was finally settled. After filing the security bond into Court, the 2nd respondent herein was examined on 8th June, 1970 and she testified thus: "I am not going to sell this property until the disposal of the suit." The bond executed by the 2nd respondent was accepted by the Trial Court on 29tb June, 1970. The 2nd respondent bound herself to pay the amount withdrawn both personally and to be realised from her properties. Exhibit B-1 is the security bond executed by her and Exhibit B-3 is her statement recorded by the trial Court stating that her liability would subsist will the disposal of the suit. The L.P, A.No. 9 of 1970 filed by the 1st respondent herein was dismissed by this Court and the 1st respondent herein carried the matter in appeal to Supreme Court, where his appeal was allowed and the decree of the trial Gou t was restored. Consequently, the title of the 1st respondent herein to the suit property has been declared and he became entitled to recover possession of the suit property and profits.

(2.) Thereafter, the 1st respondent herein filed E. A. No. 389 of 1978 in the trial Court against the said Venkayya, husband of the 2nd respondent herein for restitution of the money with drawn by him The trial Court passed an order directing the restitution. As he failed to pay the money, the 1st respondent herein filed E. P. No. 30 of 1981 for recovery of the money and applied for attachment of the property of the 2nd respondent herein and attachment was ordered on 26th August, 1981.

(3.) The petitioner herein filed E A. No. 19 of 1982 to raise the attachment on 22nd January, 1981 on the ground that 2nd respondent herein sold the attached property under the sale deed dated 29th August, 1970. The petitioner contended that the security bond filed by the 2nd respondent stood terminated on the dismissal of the L. P. A that the security bond would be operative only during the pendency of the L P. A and that the 1st respondent cannot enforce the security bond consequent upon his success in the Supreme Court, that he was a bona fide purchaser for value without notice. By an order dated 27th July, 1982, the trial Court dismissed the claim petition filed by the petitioner herein holding that the security bond enures till the surety was finally disposed of and its application cannot be limited for the period during the L. P. A. was pending; that the doctrine of I is penpens did not apply; that the 2nd respondent is liable to pay the amount in view of the undertaking given by her under the security bond and that the sale transaction in favour of the petitioner herein is a collusive document brought into existence only to defeat the rights of the 1st respondent.