GADDE BUCHAIAH Vs. DASARI KOTAIAH AND OTHERS

JUDGEMENT

(1.) The first respondent in these two appeals filed O. S. No. 78/56 against the second respondent herein and his father Hanumantha Rao for recovery of monies due to him. Similar suits. O. Section 65/54 and O. Section 46/56 were filed by the appellant in C. M. A. No. 269/ 67 against the same persons. All the suits were tried together and were decreed on the 30th April, 1958. The decree-holder in O. Section 78/56, that is, the first respondent in these two appeals filed E. P. No. 295/59 on the 22nd September, 1959 for attachment and sale of certain properties which fell to the share of the son, the second respondent, in a partition between him and his father. On 8-1-1962 five of these items were sold and were purchased by the decree-holder. Meanwhile an insolvency petition was filed by the judgment-debtor, Hanumantharao. On 7-2-1959 an interim Receiver was appointed. Subsequently, the insolvency petition was allowed and Hanumantharao was adjudicated an insolvent on 4-11-1959.

(2.) Two applications were filed under Order 21, Rule 90 and Section 151, C. P. C. to set aside the sale held on 7-1-1962 in E. P. No. 295/59. The first application, E. A. 747/62 is by the decree-holder in O. Section 65/54 and 46/56 and the second is by the Official Receiver. The sales were sought to be set aside on several grounds. These applications were opposed only on the merits, but on the ground that the petitioners had no locus standi to file the petitions. The court below, while giving findings on the merits came to the conclusion that the petitioners in both the applications had no locus standi to file the petitions and dismissed the petitions with costs. The decree-holder in O. Section 46/56 has preferred C. M. A. No. 269/67 against the order in E. A. No. 747/62 and the Official Receiver has preferred C. M. A. No. 270/67 against the order in E. A. No. 748/62.

(3.) The second respondent in these appeals had filed a suit, O. Section 92/54 against his father. Hanumantharao alleging that partition has already been effected on 10-11-1953. This suit ended in a compromise decree dated 30-8-1955. In the subsequent suit filed by the appellant in C. M. A. No. 269/67, that is O. Section 46/56 one of the questions was whether the decree in O. S. No. 92/54 was collusive and fraudulent. It was held that the partition set up was true and the division in status had been brought about only by the institution of the suit O. Section 92/54. This was affirmed in appeal by the High Court.