GANDAVARAPU VENKATA SUBBA RAO Vs. VAVILALA KESAVAYYA

JUDGEMENT

(1.) THIS is a judgment-debtors appeal against the order of the District Judge, Guntur in . C. M. A. No. of 1953 confirming that of the District Munsif in Execution Petition No. 153 of 1952.(2) The respondent instituted O. S. No. 194 of 1950 in the Court of the Subordinate Judge, Guntur to enforce the mortgage deed executed by the appellant. He obtained a preliminary decree on 1.9.1951. In due course, a final decree was made on 16.7.1952. The defendant filed an appeal in respect of a portion of the decree amount and the plaintiff filed cross-objections against that part of the decree disallowing interest. On 25.3.1953, the District Court dismissed the appeal filed by the defendant and allowed the cross-objections of the plaintiff. Meanwhile on 26.7.1952, the decree-holder filed Execution Petition No. 153 of 1952 for realising the decree amount by sale of hypotheca.The sale was held on 10.8.1953 anmd the hypotheca was sold for Rs. 4,060.00. It may be mentioned at this stage that the preliminary decree was for the recovery of Rs. 5,000.00. By reason of the decree made by the appellate Court on 25.3.1953 the defendant had to pay another sum of Rs. 332-5-2 and also the costs of the appeal. After the appellate decree, neither the final decree was amended nor was the correct figure included in the execution petition.(3) The judgment-debtor contended in the courts below that the final decree was a dependent decree and as the preliminary decree on which it was based was varied by the appellate Court unless a fresh final decree was made or the existing decree amended, so as to bring it is conforinity with the appellate decree, the original decree could not be executed, and, therefore, the sale held prusuant thereto was void. THIS contention was negatived by both the courts. The judgment-debtor also raised before the lower court the plea that the reduction of the upset price from Rs. 18,000.00 to Rs. 4,000.00 was wrong. The learned District Judge held, agreeing with the court below that the sale was valid. Hence the appeal.(4) Mr. Ramachandraiah, learned counsel for the appellant relies upon the two points which his chent unsuccessfully raised in the courts below.(5) Taking the second point first, some of the relevant facts mayu be stated. The suit property is a house in Guntur. It is subject to a mortgage of Rs. 18,000.00. It was fetching a monthly rental of Rs. 90.00. If the portion occupied by the Judgment-debtor was also let out, it might have fetched another sum of Rs. 25.00 per month. In the first instance, the learned Subordinate Judge fixed the upset price at Rs. 15,000.00 but there were no bidders. Having regard to the aforesaid facts, he reduced the upset price to Rs. 4,000.00 subject to the prior mortgage. The learned District Judge also accepted, in the circumstances, that the resduction of the upset price was correct. There are, therefore, no permissible grounds for interference in a Civil Miscellaneous Second Appeal with the discretion exercised by the Subordinate Judge, having regard to all the facts placed before him and particularly when his conclusion was accepted by the appellate court.(6) The first point of the learned counsel may be put thus : The final decree is a dependent decree, depending for its validity on the prelimimary decree. When the preliminary decree was superseded by the appellate decree, unless the final decree is suitably amended to bring it is conformity with the appellate decree or a fresh final decree is made, the hypothecate cannot be brought to sale. As in this case, the property was sold pursuant to the final decree, which lost its legal force, the sale held in execution of that decree was void. THIS argument was subject to judicial scrutiny resulting in a conflict of views. It is, therefore, convenient at this stage to consider the cases cited at the Bar.(7) In -- Subbarayulu Nayudu v. Sundararaja Naidu, AIR 1919 Mad 938 (A), Abdur Rahim and Oldfield JJ., held that an application for a final decree for sale under O. 34, R. 5 (2), C. P. C., is governed by Art. 181 of Limitation Act, and where there has been an appeal from the preliminary decree, time begins to run from the date of the decree on appeal even though the appellate decree merely confirms the decree of the first court. The reason for the decision was expressed in the following terms at page 938 :