K PEDDA NAGI REDDY Vs. BOYA RAMA LAXMAMMA

JUDGEMENT

(1.) The Defendant No.4 is the appellant. Suit, for setting aside the decree passed in S.C.42 of 1960 dated 17-1-1963, for setting aside the sale in pursuance of mat decree and for recovery of possession of suit lands delivered to him in pursuance of mat decree, has been decreed against him.

(2.) It is no longer in controversy before me mat late Boya Mandla Madduleti was the father of the plaintiff and the husband of the 2nd defendant who is the mother of the plaintiff. The decree-Defendant No.1 Kachupati Sivareddy had filed a civil suit in SC 42 of 1960 on the file of the Sub-Court, Kumool against the 2nd defendant and the plaintiff for recovery of Rs.574.10 ps alleging that the deceased late Madduleti had borrowed Rs.500/- from him with interest at the rate of 12% per annum on 21-5-1957 and did not repay inspite of demand. The 2nd defendant was appointed as guardian ad litem in that suit. She absented herself and therefore she was proceeded ex parte. The plaintiff was also proceeded ex parte and an ex parte decree was passed on 6th June, 1960. In execution of mat decree in E.P.No.70 of 1961, the suit properties were sold by auction and it was purchased by the deceased decree holder Kanchupati Sivareddy. A sale certificate was issued to him and he had obtained the possession of the suit property.

(3.) The plaintiff, who was the defendant in S.C.42/60, instituted a suit for setting aside the ex parte decree passed in SC 42/60 for setting aside the sale of the suit properties held during the execution of that decree and for delivery of possession of the same and mesne profits, alleging that her mother, Defendant No.2, had married second husband soon after the death of her 1st husband late Mandla Madduleti and left the plaintiff who was then three months old, in the custody of her maternal uncle, and had started living with the 2nd husband in another village, namely, Chenchu Yerragudem. Actually, she was not appointed as guardian ad litem of the plaintiff in that suit. She alone had inherited the suit property after the death of her father because of her mother, 2nd defendant, who has been married another husband, was divested of the estate of her father. The deceased plaintiff late Kanchupati Sivareddy knowing fully well that the 2nd defendant had married 2nd husband and had started living with him at Chenchu Yerragudi, deliberately got the summons issued in her name giving the address of Pothugallu village. There was no proper representation on behalf of 2nd defendant in that suit and summons was not even served on her. Her mother i.e., 2nd defendant was grossly negligent and indifferent in conducting the suit and, therefore, the decree passed in SC 42 of 1960 on 17-1-1963 is not at all binding on her. During the course of execution proceedings no notice was ever served on the plaintiff and/or her mother, the 2nd defendant. The suit property was sold by auction subject to the alleged mortgage of Rs.1,000/- in favour of the deceased plaintiff-decree holder Kanchupati Sivareddy for a sum of Rs.650/- only on 17-1-1963 though the value of the suit property was Rs.84,000/- at that time. She has further alleged that fraud was practiced on her by the deceased Kanchupati Sivareddy by describing her under the guardianship of the defendant.