DEVATHI SUBBARAYUDU Vs. PUVVADI CHINNA VENKATASUBBIAH

JUDGEMENT

(1.) This appeal is directed against the judgment of our learned brother Srinivasachari, J., dated 6-12-1957 in S. A. No. 310 of 1955, on leave granted by the learned Judge under Clause 15 of the Letters Patent.

(2.) The facts out of which this appeal has arisen may be briefly stated :

(3.) The appellants before us brought O. S. 74 of 1949 in the Subordinate Judges Court, Cuddapah, foe setting aside the order dated 4-5-1949 made in E. A. No. 366 of 1948 in O. S. No. 235 of 1943 on the file of the District Munsiffs Court, Nandalur, and for re-delivery of possession of the suit properties to the appellants-plaintiffs, hereinafter referred to as the plaintiffs. The suit property consists of the northern portion of a terraced house in the town of Badvel in Cuddapah District. The 2nd plaintiff is the mother of the 1st plaintiff. The latter as minor represented by his guardian, the 2nd plaintiff filed O. S. No. 396 of 1931 in the District Munsifs Court, Mandalur, on a promissory note, against one Chinni Venkata Subbayya and his sons and also obtained an attachment before Judgment of the suit house, which then belonged to the defendants in that suit. This suit was decreed on 10-12-1931. Some fifteen days before this, on 25-11-1931, the defendant in O. S. No. 396 of 1931 i.e., Chinni Venkata Subbayya and his sons, executed a mortgage, Ex. B. 1, in favour of Puwadi Venkata Subbaiah the father of the respondent in this appeal. Subsequently, the said Chinni Venkata Subbayya and his sons were adjudicated insolvent in their own petition on 25-7-1934 in I. P. 126 of 1933, on the file of the District Judges Court Cuddapah. After this adjudication, and during the pendency of the insolvency, the present 2nd plaintiff us the mother and guardian of the 1st plaintiff, filed I. A. 168 of 1935 in the court of the Official Receiver, requesting the latter to move the District Court for an annulment of the aforesaid mortgage as fraudulent and not binding on the general body of creditors of the said Chinni Venkata Subbayya and his sons. At this stage, mediators intervened, and there was a settlement between the plaintiffs and the mortgagee, that is, the father of the present respondent by which it was settled that the respondents father should purchase the house in the auction to be held by the Official Receiver, subject to the mortgage in his favour, and thereafter, according to the plaintiffs herein, give a half portion of that house to the plaintiffs free of the mortgage liability, towards the decree debt in favour of the plaintiffs; and as part of this arrangement I. A. 168 of 1935 was withdrawn by the plaintiffs and was dismissed on 27-2-1936.