MOTHIKA MUTYALU Vs. MALLADI RAJYALAXAMMAMMA

JUDGEMENT

(1.) This appeal is preferred against the judgement and decree in O. S. 114 of 1962 Sub-Court, Vijayawada by the plaintiffs in that suit which was dismissed with costs.

(2.) The appellants-plaintiffs are the great grant-son of Mutyaly. The third defendant is the son and the fourth defendant is the son of the third defendant , the plaintiffs being the sons of the fourth defendant. Mutyaly executed a mortgage in respect of a house of which the plaint schedule property forms part in favour of the first defendant for a sum of Rs. 3,500/-on 17-12-1940. Thereafter he also executed a sale in respect of the property in favour of the first defendant on 9-3-41. One of the terms of the sale was that n case Mutyalu paid the sale consideration of Rs. 7,500/- at any time between 9-3-47 and 8-3-1952 the first defendant should re-convey the property. Before the expiry of the time stipulated Mutyaly died. The son and grand-son, the third and fourth defendants filed a suit O. S. 74/52, Sub-Court, Vijayawada contending that the sale-deed was really a mortgage by conditional sale and they are entitled to redeem the same. The matter was compromised and the compromise decree was passed on 21-010-1952 where under the eastern part of the house marked A in the Plan attached to the decree should be taken absolutely by defendants 3 and 4 and the western portion should be taken by the first defendant and defendants 3 and 4 should give up their right to redeem the same. The first defendant should further receive a sum of Rs. 4,000/- as consideration for giving up his right s in the A marked portion. But as they did not have the requisite money, the eastern portion allotted to defendants 3 and 4 was against mortgaged in favour of the first defendant on 30-9-1952 for a sum of Rs. 10,000/-. The first defendant filed a suit on foot of the mortgage, O. S. 32/54 Sub-Court, Vijayawada and obtained a preliminary decree on 28-8-1954. Ultimately, a final decree also was passed. The mortgagee thereupon filed E. P. 389/56 to execute the mortgage decree and also successive E. Ps. In 1962 the plaintiffs filed the present suit for partition of the plaint schedule properties into four equal shares and for possession of one such share. They also filed a petition for an interim injunction restraining the first defendant herein from proceeding with the execution of the mortgage decree which he had obtained in O. S. 32/54 Sub-Court, Vijayawada. Interim injunction was ordered. The suit however was dismissed for default on 15-1-64 and on that day the petition for injunction also was dismissed for default on 15-1-64 and on that day the petition for injunction also was dismissed. On an application by the plaintiffs the suit was restored to file in March 1965. Thereafter, the first defendant filed E. P. 269/65 for executing the mortgage decree . It appears that the executing Court returned the E. Ps. asking the decree-holder therein to state whether the injunction granted was vacated. It was re-presented stating that though the suit was restored to file the injunction petition was not restored with the result that there was no injunction operating against the first defendant. Ultimately, the E. P. was rejected on the ground that the High court decree was not filed. The first defendant then filed E. P. 120/66 and in that E. P. she brought 68 and purchased the property herself for Rs. 28,000/-. The plaintiffs tried to avert the sale by filing e. As. 184, 185 and 186/68 praying for stay of the sale and for other reliefs but they were dismissed and the sale was held. As against the said order in one of the E. As. E. A. 184/68 the plaintiff preferred C. R. P. 368/69 to this Court which was also dismissed on 6-3-1968. Thereafter the sale was confirmed on 16-3-1968.

(3.) The plaintiffs thereupon had their plaint amended by including a prayer for declaration that the sale in O. S. 32/64 was illegal, void and not binding on the plaintiffs.