SAMUDRALA SRINIVASACHARYULU Vs. MARRIPATI HANUMANTHA RAO

JUDGEMENT

(1.) The question in the second appeal is whether S. 66, Civil P. C., is bar to the maintainability of the suit.( The plaintiff Hanumantha Rao, Ramakrishna Rao and the 3rd defendant are brothers Defendants 4 to 6 are the undivided sons of the plaintiff and his two brothers. The 3rd defendant, the youngest of thebrothers, became indebted to the Krishna Co-operative Urban Bank Limited, Masulipatam, as a surety, the principal debtor being Velagapudi Ranga Rao, who is the plaintiffs son-in-law. The Registrar of Co-operative Societies passed an award No. 1770 of 1940 against the 3rd defendant and Velagapudi Ranga Rao. The award was sought to be executed in e. P. No. 30/1941-42 and the undivided 1/3 share of the 3rd defendant along with the other items was brought to sale. At that stage, it was arrangeed between the brothers and the 2nd defendant that the 2nd defendant should advance the necessary funds and liquidate the debts of the plaintiffs and the 3rd defendant and subsequently recoup himself from their properties. This arrangement, it is said, was arrived at even before 1-3-1942, though an actual trust deed was executed in favour of the 2nd defendant on 29-3-1942.In implementation of that arrangement, the 2nd defendant gave some amount to the 1st defendant and got the undivided 1/3 share in the suit house purchased in the 1st defendants name benami for the 2nd defendant. The 1st defendant subsequently executed a letter dated 16-3-1942 in favour of the 2nd defendant setting forth the circumstances under which the property was purchased in his name and agreeing to execute the necessary conveyance in favour of the 2nd defendant soon after the confirmation of the sale. On 29-3-1942, the 2nd defendant relinquished his interest in favour of the plaintiff and defendants 3 to 6 under a registered document. Meanwhile, the 1st defendant sold the 1/3 undivided share purchased in his name to the 7th defendant. The plaintiff filed O. S. No. 72 of 1948 on the file of the Court of the Principal Subordinate Judge of Masulipatam, for a declaration that the plaintiff and defendants 3 to 6 are jointly entitled tothe 1/3 share in the suit house and for a permanent injunction restraining defendants 1 and 7 from interfering with their possession.

(2.) Defendants 1 and 7 pleaded, inter alia, that the suit was not maintainable by reason of S. 66,C. P. C. The learned Subordinate Judge and, on apeal, the learned District Judge, negatived the contention of the defendants and decreed the suit. The 7th defendant has preferred the above second appeal

(3.) The learned Advocate General appearing for the appellant contended that the 1st defendant claimed title under a purchase certified by a court, and, therefore, a suit for a declaration that he made the purchase on behalf of the 2nd defendant or the plaintiff would not lie and that S. 66, C. P. C., was a bar to such an action; whereas the learned Counsel for the respondents argued that S. 66 (1), C. P. C., should be confined only tyo a sale certified by the court under any of the rules framed under the civil Procedure Code and that, as in the present case the sale was purusant to the rules made under the co-operative Societies Act, the said section has no application. Section 66 (1), C. P. C., runs thus: