VEMURI SESHAGIRIRAO Vs. PULIPATI NARASIMHARAO AND OTHERS

JUDGEMENT

(1.) This appeal brought by the plaintiff arises out of a suit instituted by him for the recovery of Rs. 5841/- made up of Rs. 4950/- deposited by him on 30-11-1944 being the amount decreed in O.S. 59/1936, Sub Court, Bandar and Rs. 891/- interest that accrued thereon at 6% per annum. The plaintiff claimed a decree for this amount from defendants 1 to 4 personally by sale of A, B and C scheduled properties by virtue of his right of subrogation and for apportionment of the suit amount and costs among the A, B and C scheduled properties and for recovery of the same by sale. The property mentioned in A schedule is a site with a building thereon in Vijayawada. B and C schedules contain lands of the extents of Ac. 5. 82 1/2 and Ac. 13-87 cents situated in Chodavaram and Bhavadevarapalli villages respectively. In order to build a house on the site described in the A schedule, the 1st defendant borrowed from the Vijayawada Co-operative Buildings Society a sum of Rs. 4000/- under Ex. A-1 on 31-5-1925. As this debt was not discharged, the society obtained an award 1991/1932 dated 20-12-1933 and in execution of it the property was brought to sale. It was purchased for Rs. 4770/- by the 5th defendant on 16-12-1934. The sale was confirmed on 28-2-1935 and a sale certificate was issued on 19-9-1935. The 1st defendant along with his three sons, defendants 2 to 4, who were minors at that time created mortgage over the A, B and C scheduled properties on 20-9-1930 in favour of one Devata Gangaiah. The mortgagors had no right to the B scheduled property which belonged to the 1st defendant's mother and her sister. The same mortgagors executed a simple mortgage for Rs. 1560/- in favour of plaintiff mortgaging the house mentioned in A schedule on 28-7-1931. Meanwhile, defendants 1 to 4 sold items 1 to 5, G schedule measuring Ac. 7-59 cents for Rs. 3400/- to the 15th defendant. The vendee was directed to pay a part of the sale price i.e., Rs. 2500/- to the mortgagee Gangaiah. The latter paid only Rs. 8000/- and defaulted in paying the balance with the result that Gangaiah instituted O.S. 59/1936 on the foot of his mortgage, to which the present plaintiff who was a puisne mortgagee in regard to A scheduled properties was added as the 9th defendant. A preliminary decree was passed in his favour on 16-8-1937 under which the time fixed for payment was till 16-2-1938. Against the preliminary decree, an appeal was carried unsuccessfully to the court of the Subordinate Judge by the present plaintiff. It may here be mentioned that the mortgagee assigned his mortgage rights after the institution of the suit to one Jonnatagadda Seetaramaiah who is impleaded as the 16th defendant in the suit. The assignee who came on record as the 2nd plaintiff purchased the A scheduled house for Rs. 4200/- on 22-2-1944. That satisfied his decree and consequently the other properties included in his mortgage were not proceeded against.

(2.) The 5th defendant who, as stated, had bought this house earlier in 1934 filed C.M.P. No. 4 of 1942 to set aside the sale in favour of the 16th defendant. This application was ultimately dismissed with the consequence that the title of the 16th defendant to the bouse was upheld.

(3.) While matters stood thus, the present plaintiff filed an application under Order 34 Rule 5 C.P.C. for setting aside the, sale of A scheduled properties in favour of the 16th defendant. Though defendants 1 to 4 and 16 were made parties to this application, notice was taken out only to 16th defendant. Overruling the objection raised by the 16th defendant the executing court allowed the present plaintiff to make the necessary deposit and this was done on 30-11-1944. It is for recovering this sum with interest thereon that the present suit was filed by the appellant on 29-11-1947.