YELLAPRAGADA SIVARAMAKIRSHNA PRASADA RAO Vs. VEMURL VENKATESWARLU

JUDGEMENT

(1.) A mortgage d/9-8-1958 was executed by the father of the appellant on behalf of himself and his sons. The appellant was a minor at that time and in the mortgage he was represented by his father. The mortgagee filed a suit on foot of the mortgage, O.S.91/66 on the file of the Subordinate Judge, MachiMpatnam and obtained a preliminary decree on 14-3-1967. According to the appellant he was born on 1-7-1949 and attained majority only on 1-7-1967. The appellant who was the fifth defendant in that suit was however shown as major and no guardian was appointed to represent him in that suit eventhough he was a minor at that time. The preliminary decree was passed on 14-3-1967 and even on that date the appellant was a minor. This was followed by a final decree d/- 1-3-69 by which time the appellant became a major. In execution of that decree, the plaint schedule properties were sought to be brought to sale. On 30th June, 1970, rhe appellant herein filed a petition; E.A. 340/70 under Sec. 47 C.P.C. for a declaration that the preliminary decree and the final decree passed against him were void, as he was a minor on the date of the filing of the suic snd on the date when the preliminary decree was passed and he was not properly represented and no guardian was appointed for him to conduct the suit. By way of abundant caution, the appellant also filed E.A. No. 593/70 to treat E.A 340/70 as a suit on payment of additional court-fee, if any, and to decide the same according to law. It was contended on behaif of the respondents that the petitions were filed at the instance of the father, the first defendant fn the suit in order to delay the realisation of the decretal amount. The appellant was a major even at the time of the filing of the suit and notice had been duly and properly served on him. He received the su't summons and kept quiet. It was therefore, not open to him to contend now that he was a minor and not properly represented in that suit. The first defendant, the facher had admitted the execution of the mortgage bond and requested that a decree may be passed and the preliminary decree as well as the final decree were passed. There are absolutely no bonafides in filing the applications. It was further contended that even assuming that the appellant was a minor, the petition under sec. 47(I)C.P.C. is not maintainable and no case was made out for converting the petition into a suit.

(2.) The learned Subordinate Judge first considered E.A.No. 593/70, namely, the petition under sec. 47 (2) C.P.C. to treat E.A.340/70 as a suit. He came to the conclusion that the father of the petitioner was responsible for this petition which was filed in order to delay execution proceedings. The petitioner had filed the petition with mala fide intention to protract the execution proceedings Sec. 47(2) C.P.C has no application in the circumstances of the case and at any rate there was no justifiable case to convert the petition under sec.47 (2) C.P.C. into a suit. He therefore, dismissed E.A.No. 593/70 with costs. in regard co E.A. No. 340/73 he passed a separate order stating that in view of the order in E.A. 593/75 that petition was dismissed.

(3.) The appellant has filed CM. A. No. 128/72 against the order dismissing E A No. 593/70 and CM.A. 563/72 dismissing E.A.No..340170.