APPILI AUDEMMA Vs. ALLAMPATI RAMANNA REDDY

JUDGEMENT

(1.) This Revision arises out of an application (E.A. No. 45 of 1962) in E.P. No. 140 of 1960 in O.S. No. 5 of 1958 filed by the subsequent mortgagee praying for the issue of a cheque for Rs. 1,430-83 NP. lying to the credit of the suit, surplus sale-proceeds after fully satisfying the decree of the prior mortgagee. The facts leading to this Revision are :-One Venka Lakshminarasayya, the 2nd respondent in the lower Court, was the prior mortgagee and Akula Nagaiah Naidu, the 1st respondent in the lower Court, was his transferee. Pagadala Ramanamma, the 3rd respondent in the lower Court, is the widow of the deceased mortgagor. Respondents 4 and 5 in the lower Court, Pagadala Venkatakrishnaih and Pagadala Venkataseshiah, are the sons of the deceased mortgagor. Noone Venkataramaiah Setty & Co. represented by its Managing Partner, Noone Venkataramaiah, the 6th respondent, is the second mortgagee and transferor of the petitioner (5th defendant in O.S. No. 5 of 1958 Allampati Ramanna Reddy, the 1st respondent herein. Respondents 7 to 9, Appili Audemma, Jalakam Sundararajamma and Kottam Sarojanamma, (the present revision-petitioners) are the daughters of the deceased mortgagor who were impleaded as respondents in the petition in the lower Court as per order on E.A. No. 419 of 1963, dated 11th September, 1964.

(2.) VenkaLakshminarayanaiah filed O.S. No. 5 of 1958 to recover the amount due under the mortgage. He impleaded, Pagadala Ramanamma, Pagadala Venkatakrishnayya and Pagadala Venkataseshiah as the legal representatives of the deceased mortgagor. Allampati Ramana Reddy was impleaded as the 5th defendant and his transferee as the 4th defendant. It appears Allampati Ramana Reddy who was served with suit notice did not enter appearance and was set ex parte. A preliminary decree was passed and the same was followed by a final decree. Venka Lakshminarayanaiah transferred the decree in favour of Akula Nagiah Naidu, who, in execution of the decree, brought the schedule properties to sale. In that petition, Allampati Ramana Reddy was impleaded as a respondent and the transfer in his favour was duly recognised. In the sale, Allampati Ramana Reddy purchased the properties for Rs. 9,320 After the confirmation of the sale, Akula Nagaiah Naidu drew the amount due to him under the decree including the subsequent interest and costs totalling to Rs. 7,647-30 NP. and the claim under the decree was fully satisfied.

(3.) There remained balance of Rs.1,430-83 nP. as surplus sale proceeds. It is this amount which Allampati Ramana Reddy is seeking to get as the subsequent mortgagee and person interested in the property under Order 34, rule 13, Civil Procedure Code. In the present action no counter was filed by Akula Nagiah Naidu. Venkata Lakshminarayanaiah remained ex parte. Pagadala Venkatakrishnayya filed a counter admitting Allampati Ramana Reddy as the transferee and stated thot the transfer was not supported by consideration and that the debts were not incurred for the necessity of the family by his father. He also stated that he, 3rd respondent and the 5th respondent were not liable to the extent of their share and Allampati Ramana Reddy and Noone Venkataramaiah collusively borught into existence a nominal transfer to harass them. It was also pleaded that Allampati Ramana Reddy was not entitled to the surplus sale-proceeds.