KORRU REDDI KUMAR Vs. M SURESH KUMAR REDDY

JUDGEMENT

(1.) The first respondent filed O.S.No.80 of 1996 in the Court of Senior Civil Judge, Madanapalle for recovery of Rs.90,625/- against the respondents 2, 3 and 4. The suit was decreed on 16-09-1998. Since the respondents 2, 3 and 4 did not satisfy the decree, the first respondent initiated execution proceedings in the Court of the Senior Civil Judge, Madanapalle, which in turn, were transferred to the Court of Senior Civil Judge, Punganur and numbered as E.P.No.16 of 1999. Certain items of landed property belonging to the fourth respondent were attached. When further steps were in progress, the appellant filed E.A.No.32 of 2000 under Order XX1 Rule 58 C.P.C.

(2.) The appellant contended that he entered into an agreement of sale with the fourth respondent on 05-08-1998 to purchase items 8 to 12 of the E.P. Schedule, for a consideration of Rs.40,000/- and an amount of Rs.35,000/- was already paid. On the strength of this agreement, he claimed that the said items of property cannot be proceeded with. The E.A. was resisted by the first respondent. Through its orders dated 23-04-2001, the executing Court dismissed the E.A. Aggrieved thereby, the appellant filed A.S.No.31 of 2001 in the Court of the II Additional District Judge, Madanapalle. The appeal was dismissed through judgment dated 09-05-2001. Hence, this civil miscellaneous second appeal.

(3.) Sri K.G. Krishna Murthy, learned Counsel for the appellants submits that the appellant had acquired substantial right in the property in question on the strength of the agreement of sale and the Courts below ought to have accepted the claim of the appellant. He submits that the agreement of sale was anterior to the decree and that the same cannot be ignored. Sri. N. Pramod, learned counsel for the first respondent submits that the agreement itself is a sham transaction brought about, for the purpose of defeating the claim under the decree. He submits the fact that the agreement of sale was brought about, hardly one month before the date of the decree that too without any possessory rights discloses the purpose behind it. The first respondent filed a suit for recovery of amount against the respondents 2, 3 and 4 and the suit was decreed on 16-09-1998. Execution proceedings were initiated and certain properties belonging to the fourth respondent were attached. As regards items 8 to 12 of the schedule, the appellant came forward with a claim petition under Order XX1 Rule 58 C.P.C. Such an application required to be dealt with, as though it is an independent suit. An appeal is provided for against an order passed therein. It was for this reason that the executing Court permitted oral and documentary evidence to be adduced, and considered the matter extensively. P.Ws.1 and 2 were examined on behalf of the appellant and the agreement of sale dated 05-08-1998 was marked as Ex.A1. The first respondent was examined as R.W.1.