A CHANDRAIAH Vs. ACHANDRAMOULI

JUDGEMENT

(1.) Third respondent filed a suitfor recovery of money against the revision petitioner apd respondents 1 and 2 on the basis of four promissory notes executed by A. Narasappa alleging that the revision petitioner and respondents 1 and 2, who are in possession of the estate of the said Narasappa, have to discharge the amount due to her/from out of the estate of Narasappa in their hands. After contest by the revision petitioner, the said suit was decreed directing the defendants therein to pay the suit amount from out of the estate of Narasappa in their hands i.e., in the hands of revision petitionerand respondents 1 and 2. In execution of that decree, third respondent filed E.P. for attachment and sale of a house property in Kurnool City, in which revision petitioner filed a counter at the stage when sale proclamation was issued alleging that A. Nagappa, who is described as owner of the property broughtto sale, is neitherthe judgment- debtor nor defendant in the suit and so that property cannot be sold and that Narasappa begot three sons A. Nagappa, A. Papaiah and A. Chandraiah i.e., himself (revision petitioner) and as both his brothers Nagappa, Papaiah died, the property of his father devolved on him by survivorship and so he became absolutely entitled to the property of his father and since the decree is passed against the estate of Nagappa and since Nagappa did not leave behind any estate, decree holdercannot proceed against the property mentioned in the E.P. Schedule. ln O.S.No.462 of 1999 filed by himfordeclaration against respondents 1and 2, third respondent got herself impleaded as third defendant and in the written statement filed by her in that suit she did not take a plea that the E.P. schedule property belongs to Nagappa and in any event since second appeal against the decree under execution is pending, the E.P. is liable to be dismissed. No oral or documentary evidence was adduced by the third respondent. On his behalf revision petitioner examined A. Lingaiah as R.W.1. Holding that the objection of the revision petitioner after receipt of notice under Order21 Rule 66C.P.C.cannot be entertained, the executing Court ordered further steps in the E.P. by the order under revision. Hence this revision.

(2.) The main contention of the learned counsel for the revision petitioner is that since there is no personal decree againstthe revision petitioner and as the decree is against the estate of Nagappa in the hands of the revision petitioner and respondents 1 and 2, and since the E.P. schedule property was notthe property of the deceased executant of the promissory notes covered by the suit and as it belonged to the father of the revision petitioner, who relinquished his interest therein in favour of the revision petitioner, third respondent has no right to proceed against the said property. It is also his contention that as this respondent, who got herself impleaded as a party to O.S.No.462 of 1999 filed by the revision petitioner seeking declaration of his right and title and for perpetual injunction in respect of certain other properties did not plead that the E.P. Schedule property is a property left behind by Nagappa, it is clear that the property sought to be proceeded against did not belong to Nagappa, and so, the order under revision is unsustainable.

(3.) The contention of the learned counsel for third respondent is that as there is no evidence in record to show father of the revision petitioner relinquished his rights in the E.P. schedule property in favour of the revision petitioner and since third respondent not making a reference to the E. P. schedule property in the written statement filed by her in O.S.No.462 of 1999 has noconsequence, the executing Court rightly overrule the objection of the revision petitioner.