ZILLUDUMUDI APPA RAO Vs. VEERINI SURYANARAYANA

JUDGEMENT

(1.) Aggrieved by the decree in O.S. No.211 of 1977 on the file of the Court of the I Additional Subordinate Judge, Visakhapatnam the defendant in that suit preferred this appeal.

(2.) The deceased first-respondent filed the aforesaid suit for a declaration that the attachment. and sale of the properties held in E.P. No.399 of 1969 in O.S. No. 126 of 1968 on the file of the Court of the Principal Subordinate Judge, Visakhapatnam is vitiated by fraud and hence is liable to be set aside. His case is that he is the owner of the house bearing Door Nos.22- 31-18/1 to 13 with Municipal Assessment No.5374 in T.S. No.444-A in Block No.5 of Seetharamaswamy Temple Ward at Visakhapatnam, situated in about 278 Sq. yards of site. The deceased first appellant who obtained a money decree for recovery of Rs.9,540/- and interest in O.S. No. 126 of 1968 on the file of the Court of the Principal Subordinate Judge, Visakhapatnam filed E.P. No.399 of 1969, and got attached the said site of 278 Sq.yards and figured as the highest bidder for Rs.11,100/- in the Court sale held on 22-9-1971 and sought delivery of the said site with the building therein in E.A.No.282 of 1974 though the sale certificate does not show the existence of a building in the property sold. The Executing Court even without taking into consideration the fact that title to the building in the site did not pass to the first appellant allowed the said petition on 27-4-1974. So he preferred a revision in C.R.P. No.806 of 1974 to this Court, questioning that order but it was dismissed on 3-2-1976. He filed O.S. No. 1109 of 1977 for setting aside the summary order dated 27-4-1974 in E.A. No.282 of 1974 and obtained an ex parte interim injunction, which was vacated in C.M.A. No.26 of 1977.' Since he was advised to seek a declaration that attachment and sale of his property one vitiated by fraud and for the consequent relief of setting aside the sale, he filed the suit.

(3.) The case, in brief, of the 1st appellant is that since 1st respondent constructed the building in the site after the same was sold in his favour in E.P. No.399 of 1969, the suit is not maintainable more so because first respondent withdrew O.S. No. 110 of 1977 without seeking leave of the Court to file a fresh suit. That there was no building in the site, either at the time of attachment or at the time of sale, would be evident from the fact that 1st respondent did not raise any such objection at any stage in the E.P. When the execution Court overruled the objections raised by the first respondent for delivery of the property he filed C.R.P. No.826 of 1974 in this Court and obtained stay. Even while E.A. No.282 of 1974 was pending first respondent filed E.A. No.328 of 1974 which was dismissed on 3-2-1976. There after he filed another E.A. for the same relief and on the same grounds when that petition was rejected he filed C.M.A. No.508 of 1976 and obtained stay of delivery. After the sale was confirmed on 24-3-1972, and sale certificate was issued and when he sought delivery of the property in E.A. No.293 of 1972, first respondent filed an E.A., for setting aside the sale on the very same grounds. But that E.A. was rejected. Questioning the said order of rejection first respondent filed C.R.P. No. 1191 of 1972 in this Court and obtained stay of delivery. Later the said revision was dismissed on merits. E.A. No.286 of 1974 filed by the 1st respondent under Section 47 C.P.C., to set aside the sale on the ground of fraud and material irregularity, is still pending and so it is clear that the suit is vexatious.