P RAGHAVAIAH Vs. B PEDA AMMAYYA

JUDGEMENT

(1.) This revision is filed against the orders dated 19-6-96 passed in E.A. No.33/87 in E.P. 46/78 in O.S. No.105/64 on the fileof the Subordinate Judge's Court, Guntur, by which the claim of the petitioner herein in the E.P. Schedule properties was rejected in part.

(2.) The respondent herein filed O.S. No.105/64 on the file of Subordinate Judge's Court, Guntur against Boggavarapu Pedda Ammaiah and Company as first defendant; P. Yellamanda, who is the father of the present petitioner, as second defendant, P. Seetharamaiah, the paternal grand-father of the petitioner herein, as third defendant and some other defendants for dissolution of the first defendant firm and for recovery of some amount by settlement of accounts. Final decree was passed in the said suit against the second defendant P. Yellamanda, who is the father of the petitioner herein, directing him to pay an amount of Rs.1,45,929-59 ps. to the respondent herein. A partition deed was executed between the father and the grand-father of the petitioner relating to the family properties. Subsequently, the paternal grand-father of the present petitioner executed a Will on 2-11-1964 bequeathing his properties to the petitioner. The father and paternal grand-father of the petitioner also executed two gift deeds relating to some properties in favour of some others. The respondent herein, who is the decree holder in O.S.105/64, filed the suit O.S.87/68 on the file of the Subordinate Judge, Guntur questioning the above said partition and the alienations made by the father and grand-father of the petitioner and the Will executed by the grand-father, contending that such allienations were made with a view to defeat the creditors. The said suit was decreed and the partition deed as well as the gift deeds were set aside as fraudulent. The Court, however, upheld the validity of the Will executed by the grand-father of the petitioner. The appeal filed in A.S.178/78 on the file of the Addl. District Judge, Guntur against the decree and judgment in O.S. 87/68 was dismissed and the Second Appeal No.190/82 filed in the High Court was also dismissed thereby confirming the decree and judgment passed in O.S.87/68, which thus became final. Subsequently, the respondent, who is the decree holder in O.S.105/64, filedE.P. 46/78 in O.S.105/64 for attachment and sale of the joint family properties to realise the decree debt from the father of the petitioner herein. The petitioner filed E. A.33/ 87 under Sec.47 and Sec.151 C.P.C. contending that he is entitled for half share in the E.P. Schedule properties on the basis of the will executed in his favour by his grand-father and such half share in the E.P. Schedule properties is, therefore, not liable for attachment and sale. He also contended that his father Yellamanda did Tobacco business with the respondent and thereby became indebted to him; that the debts contracted by his father in connection with such Tobacco business started for the first time are not binding upon him (petitioner) as they are 'Avyavaharika' debts and as such his half share in the half share belonging to his father in the E.P. Schedule properties is also not liable for attachment and sale. The petitioner, therefore, contended that 3/4th share in the E.P. Schedule properties is not liable for attachment and sale. The respondent contested the petition by filing his counter contending that the Tobacco business was done by the father of the petitioner for the benefit of the joint family and the debt contracted by him is not 'Avyavaharika debt'; that the petitioner is liable to discharge such debt incurred by his father in connection with such business; that the Will executed by the grand-father of the peittioner is also not valid as it was done only with a view to defeat the creditors and that, therefore, the petition filed by the petitioner is liable to be dismissed.

(3.) On the basis of the material placed before him, the learned Subordinate Judge upheld the contention of the petitioner regarding his half share in the E.P. Schedule properties claimed by him under the Will executed by his paternal grand-father and came to the conclusion that such half share which now belongs to the petitioner in the E.P. Schedule properties is not liable for attachment and sale. He, however, held that the respondent can proceed with the execution petition in respect of the remaining half share of E.P. Schedule properties belonging to him and his father as the debt contracted by the father of the petitioner is not 'Avyavaharika debt' and that the share belonging to the petitioner also in the joint family property is liable for discharging such debt contracted by his father. The petitioner has chosen to file the present revision questioning the said orders of the lower Court in so far as it relates to the dismissal of E.A.33/87 relating to the half share in the E.P. Schedule properties belonging to the petitioner and his father.