THIKKIREDDI SWAMI NAIDU Vs. MAMILLAPALLI SRIHARI

JUDGEMENT

(1.) This revision petition arises out of the application filed by the decree-holder under Order 21 rule 98 C.P.C. for removal of obstruction. It is stated by the applicant decree holder that the respondents unlawfully caused obstruction from taking delivery of the properties pursuant to E.P.62/81. The 1st respondent in his counter stated that pursuant to the decree against G.uarayana Rao and his brother who are the original owners of the property, Meka Ramarao purchased the said properties for Rs.555/- subject to the mortgage in the sale held in execution proceedings in E.P.112/66 in O.S.52/64 and has been enjoying the same thereafter. Thereafter Meka Ramarao sold an extent of 0.90 cents to the 1st respondent and the remaining land to other respondents. The purchase of the same in the court auction and confirmation thereof are denied and in any event by the date of the sale in favour of the applicant the judgement-debtors did not have any subsisting interest in the property and as such the decree-holder did not get any right, title or interest.

(2.) The trial court held that Meka Rama Rao (R.W.6) is a nominee of judgment debtor and no title passed to him. On appeal the lower Appellate Court reversed the order holding that the plea of nominal nature in Court sale cannot be entertained in view of Sec.66 C.P.C. and R.W.6 and other respondents are not bound by the final decree in O.S.3/70 and therefore their interest cannot be affected. Sri C. Poornaiah learned counsel for the petitioner while fairly stating that the plea of nominal nature in Court sale is precluded by sec.66 C.P.C. contended that by virtue of Sec.65 C.P.C. the sale held in O.S. 3/70 must be considered to have preceded the sale in favour of R.W.6 and the absence of notice in O.S.3/70 does not have impact as R.W.6 and others can be attributed with knowledge and in any event the notice to them in O.S.3/70 is not imperative. Sri P.L.N.Sarma, learned counsel for the respondents seeking to sustain the judgment of the lower appellate court contended that by the time the legal implication of Sec.65 is set in motion the judgment debtors were divested of their interest in the property and as such recourse to Sec.65 is not valid and further the final decree in O.S.3/70 is not binding upon R.W.6 and others in the absence of notice.

(3.) To appreciate the rival contentions it is necessary to have a resume of relevant facts. Ex.B-5 the certified copy of the suit register extract in ' O.S. No. 53/64 discloses that the sale was held on 30-1-1967 in favour of R.W.6 and the same was confirmed on 17-4-67 and in .A.94/68 the property was delivered to Meka Ramarao (R.W.6) on 15-2-1968 and delivery as recorded by the Court on 28-3-1968. Ex.A-1 shows that the undivided interest of Narayana Rao was sold in favour of the applicant decree-holder on 30-3-65 and the sale was confirmed on 27-3-68. Thereafter the applicant filed a suit being O.S.3/70 for partition between Narayana Rao and his brother and preliminary decree was passed on 26-9-70 and the final decree was passed on 11-2-1981 and in these proceedings R.W.6 and others were not impleaded as parties.