ORUGANTI VENKATA SUBBA REDDY Vs. STATE

JUDGEMENT

(1.) The petitioner Oruganti Venkata Subba Reddy is the son of the decree-holder Oruganti Koti Reddy. Oruganti Koti Reddy filed a suit on the foot of a promissory note executed by one Mekala Kotaiah, late husband of Mekala Punnamma, the first respondent herein. Prior to the institution of the suit, Mekala Kotaiah died. His widow Mekala Punnamma and his mother co-executant of the promissory note were impleaded as party defendants to the suit. The suit was decreed personally against the mother of Late Kotaiah and against the estate of the deceased Kotaiah to the extent of the property that passed into the hands of the widow and daughter D. Ws. 1 and 2. In execution of decree, certain properties were brought to sale. When the properties bearing S. No. 185/1 was brought to sale, the widow Mekala Punnamma filed an application being E. A. No. 814/1982 under Order 21 Rule 58 CPC claiming that the property is not liable to be proceeded against in execution. The deed of settlement executed by her husband Mekala Kotaiah confers life interest upon her and vested remainder on her children. This life interest comes into effect on the diemise of her mother-in-law. Therefore, this property is not to be proceeded against. Pending adjudicating the property was sold and the petitioner became the highest bidder and he has taken possession of the property. That sale was to be confirmed. Thereafter it was held in E A. No. 814/1982 that this property is not liable to attachment and to be proceeded against in execution. Thereafter an application being E. A. No. 751/1983 was filed by Mekala Punnamma for not recording the sale in respect of the items bequeathed to her under the settlement deed dated 10-8-1966 under which an extent of Ac. 1-29 cents of land in S. No. 131/3 and an extent of Ac. 2-26 cents of land in survey No. 115/1 were bequea-thed to Mekala Punnamma, the widow of late Kotaiah for life, and for redelivery of the possession. This application was ordered by the lower court. Against this order the present Civil Revision Petition has been filed.

(2.) In this Civil Revision petition Sri C. Poornaiah the learned counsel appearing for the petitioner, contended that the approach of the lower court is vitiated by error of jurisdiction. What all Mekala Punnamma, the widow of late Kotaiah and the Petitioner in E A No. 751/1983 and E A No: 814/1982 is entitled to is only life estate and that would come into operation only after thedemise of her mother-in-law i. e., the mother of late Kotaiah. What is sought to be sold in execution is the life estate of the third defendant, the mother of Kotaiah and therefore the sale was perfectly legal and valid, and the application for redelivery cannot be ordered and the sale ought to be recorded. It is further contended that the petitioner Mekala Punnamma, the widow of late Kotaiah, the first defendant and the first Judgment-debtor, being a party to the execution, application under Order 21 Rule 99 CPC. is not maintainable. Therefore, the view of the lower court is vitiated by errorof jurisdiction. I am unable to agree with the learned counsel for the petitioner. I am told that the order in E A No: 814/1982 has become final. So long has that order was allowed to become final, as a necessary consequence, the sale made in respect of the properties bequeathed to Mekala Punnamma, the widow of late Kotaiah under the above settlement deed is clearly illegal. Therefore, the order made by the lower court is perfectly legal in not recording the sale in favour of the revision-petitioner auction-purchaser.

(3.) With regard to the second contention, I am unable to agree with the learned counsel for the petitioner. Order 21 Rule 99 CPC reads as under. Order 21 rule 99 (1) "where any person other than the judgment-debtor is dispossessed of immovable property by the holder of a decree for the possession of such property or, where such property has been sold in execution of a decree, by the purchaser thereof he may make an application to the court complaining of such dispossession. (2) Where any such application is made, the court shall proceed to adjudicate upon the application in accordance with the provisions herein contained,"