PULAKANTI PUNDAREEKAM Vs. MADANLAL

JUDGEMENT

(1.) This appeal is filed against the order of the Chief Judge, City Civil Court, Hyderabad, at Secunderabad, dismissing a petition under Order 39 of the Civil Procedure Code for a temporary injunction. It arises out of I.A. No. 75 of 1964 for an injunction to restrain respondents 3 to 8 from bringing to sale the property involved herein pending the disposal of O.S. No. 12 of 1963 on the file of the Chief Judge for specific performance of a contract of sale of this property. The agreement giving rise to this suit was entered into between the appellants and the first and second respondents and the father of the first respondent for the sale of a house and premises Nos. 137 and 137-A, Prendarghast Road, Secunderabad, for a sum of O.S. Rs. 2,00,000 equivalent to I.G. Rs. 1,71,428-57 nP. Under the terms of this document, a sum of Rs. 10,000 was to be paid by way of advance, and in feet two cheques were issued for this amount. But we are told that these were not cashed. It has to be mentioned here that this property was mortgaged to respondents 3 and 4 by an instrument dated 2oth February, 1935 for O.S. Rs. 39,000. This property along with four other items formed the subject-matter of number of mortgages executed by the first and second respondents and their deceased fathers in favour of respondents 3 and 4. There were two mortgages created on 4th May, 1934 over two sets of properties for Rs. 1,00,000 and Rs. 14,000 by respondents 1 and 2 and their deceased fathers in favour of respondents 3 and 4. This did not include the suit property. Two other mortgages were made on the 29th of December, 1934 over two other sets of properties by the same mortgagors in favour of the same mortgagees. The mortgage relating to present property was executed on 20th February, 1935 for a sum of O.S. Rs. 39,000, as already stated. It is not necessary for us to trace the origin of these mortgages. Respondents 5 and 6 are the sons of the third respondent and respondents 7 ana 8 are the sons of the 4th respondent.

(2.) On the foot of these mortgages, respondents 3 to 8 filed O.S. No. 19/1 of 1357 fasli for recovery of the amounts due under all the mortgages. A preliminary decree was passed on the 30th of January, 1962. This was followed by a final decree on the 7th of December, 1962 as the amounts due by the mortgagors were not paid within the time prescribed. An appeal against the preliminary decree was filed in this Court and it is not yet disposed of. The mortgagors had not presented any appeal against the final decree.

(3.) It may be mentioned here incidentally that the appellants sought to come on record as parties before the passing of the preliminary decree to enable them to redeem the mortgage over the property in dispute. But this was resisted by the mortgagees qn the plea that they had no interest in the property entitling them to redeem, the mortgage. This objection found favour with the trial Court with the result that the petition was dismissed. This matter ended there as the appellants did not seek to agitate it by way of appeal or revision. But having found that their vendors were not willing to convey the property as per the agreement of sale they brought the suit in which the present application was made. Shortly thereafter they deposited the entire sum of Rs. 1,71,428-57 nP. on the 12th of October, 1963. The basis of the application for temporary injunction was that, if the properties agreed to be conveyed to them by the defendants were not kept intact, any decree that they might obtain ultimately will be ineffective, that they are "entitled to redeem this property and that respondents 3 to 8 could have no recourse to it in enforcement of other mortgages. This was resisted by both the sets of respondents on the grounds that they had a valid defence to the suit, that there was delay in enforcing the contract of sale, and lastly any decree that might be obtained against them would be incapable of execution since the mortgagee decreeholders could sell all the properties in satisfaction of their decree. The trial Court dismissed the petition observing :