T VENKATESWARA RAO Vs. T S SATYANARAYANA

JUDGEMENT

(1.) The plaintiff is the appellant. The suit is filed for a declaration that the decree obtained by the second defendant namely T.Yasodaratnam against the first defendant namely T. Sundara Satyanarayana in O.S.No. 108/71 on the file of II Addl. Sub-Court, Vijayawada and the consequent execution proceedings in E.P.NO. 21/72 are collusive, sham, nominal, fradulent, illegal, void and not binding on the plaintiff and for a permanent injunction restraining the third defendant namely V. Rama Tulasamma from proceeding with execution proceedings in E.P.No. 74/74 in O.S.No. 1319/73 on the file of the District Munsif's Court, Vijayawada and for costs of the suit.

(2.) The averments in the plaint are as follows: The second defendant is thewife of the first defendant. The first defendant borrowed a sum of Rs. 2,500/- on 4-4-1966; Rs. 27,500/- on 5-4-1966 and Rs. 1,550/- on 5-8-1968 from the plaintiff and executed pronotes agreeing to pay interest at the rate of Rs. 12%, 15% and 12% respectively. The said amounts were borrowed for the purpose of filing a suit against Smt. Pandiri Sakuntalamma, wife of Kanakaratnam and for purpose of depositing necessary stamp and registration expenses in the suit. Towards the debt due under the above three pronotes, the first defendant paid sum of Rs. 100/- on 4-4-66 and Rs. 500/- on 5-4-66 and made endorsements of payments on the respective pronotes. The amounts paid were from out of consideration of Rs. 1,550/- borrowed by the first defendant under the third pronote. Since, the first defendant did not pay the amount, the plaintiff issued a notice on 17-3-1969 to which the first defendant issued a reply notice through their counsel Pitchaiah on 2-4-1969 admitting the debt and setting up an agreement to sell his vacant site at Rs. 250/- per sq.yd. to discharge the amount due. Since the agreement did not fructify, the plaintiff issued another notice on 28-9-1970. The first defendant having received the notice did not honour the agreement. Therefore, the plaintiff filed a suit O.S.No. 263/70 on the file of the II Addl. Sub-Judge, Vijayawada against the first defendant as manager of his joint family on 15-10-1970 for recovery of the said pronote debts. The first defendant filed his appearance but, however, dragged the matter. An ex parte decree was passed on 28-7-1972. Immediately thereafter, the first defendant filed I.A.No. 3602/72 to set aside the ex parte decree and it was accordingly set aside on 5-7-1973. However, he remained ex parte again. Therefore, on 1-9-1973 an ex parte decree was passed against him sect., time. Pending disposal of the suit, the plaintiff got interim attachment of the plaint schedule property which was made absolute on 27-7-1971. Meanwhile, the second defendant filed a suit against the first defendant for recovery of Rs. 20,000/- under a pronote dated 1-4-1966 alleged to have been executed by the first defendant. The said pronote was ante-dated and brought into existence subsequently. The suit was numbered as O.S.No. 108/71 and it was filed on 20-3-1971. The first defendant and his minor son as defendant No. 7 filed written statement consenting for a decree. Accordingly, a decree was passed on 2-4-1971. In execution of that decree, the second defendant filed I.A-No- 987/71 on 25-3-1971 and attachment was made absolute on 2,4-71, Thereafter, she filed E.P.No. 21/72 on 5-14972 and got the property sold through Court on 14-9-1972 The second defendant purchased the property in the Court sale in the capacity as a decree-holder. The execution of pronote by the first defendant in favour of the second defendant is not supported by consideration as the second defendant did not have any capacity to lend. Secondly, the speed with which the suit filed was decreed establishes that the suit was a collusive suit filed to defraud the plaintiff. The first and second defendants played fraud on the Court. Since that suit followed by decree and consequent execution proceedings in O.s.NO. 108/71 are collusive, sham, fradulent, nominal and illegal, they are void. The second defendant who purchased, the property an 14-9-1972 and obtained symbolical delivery on 6-12-1972 filed P.P.no. 58/72 on the file of II Addl. Sub-Court, Vijayawada on 17-2-72 representing herself to be a pauper and continued as such till 4-4-1974. The very fact that she filed O.P. No. 58/72 in forma pauper is indicates that the second defendant did not have any means to advance a huge amount like Rs. 20,000/- and that too to her husband the first defendant. According to the second defendant, she sold the gold jewellery and out of the sale proceeds she has advanced the amount of Rs. 20,000/- which is false.

(3.) The third defendant filed another suit against the second defendant inO.S.No.1319/73 on the file of District Munsif's Court, Vijayawada and obtained a decree fradulently against the second defendant. In furtherance of the said decree, the schedule property was brought to sale once again in E.P.No. 74/74 in O-S.No. 1319/73 on the file of the District Munsif's Court, Vijayawada, The said debt, decree and the execution proceedings in E.P.No. 74/74 in O.S. No. 1319/73 of the said Court are also sham, collusive, nominal, fradulent, illegal and void. The plaintiff got the sale averted by filing a petition in the said E.P.No. 74/74 under Section 47 CPC in E.A.No.1261/74 and the same is pending. Therefore, the plaintiff filed the present suit for declaration that the debt decree and sale in O.S.No. 108/71 and E.P.No. 21/72 on the file of II Addl. Sub-Court, Vijayawada are collusive, sham, nominal, fradulent, inoperative and illegal and they are not binding against the plaintiff.