VELEGALAPUDI SAVITRAMMA Vs. KAMBHAMPATI SATYANARAYANAMURTHY

JUDGEMENT

(1.) 1. This Civil Revision Petition raises a question bearing on Order 47 Rule 1 of the Code of Civil Procedure, the question being whether the trial Court could review its judgment in regard to a part of a decree which was not appealed from.

(2.) If is necessary to set out the facts on which the decision in this Civil Revision Petition is to be based. The respondent initialed a suit for possession of 2/5th share in items 1 and 2 of B schedule annexed to the plaint as purchaser in an auction sale held by the Co-operative Credit Society of Avidi in execution of two awards obtained separately against defendants 1 and 2, who owned each a 1/5th sharp therein. The suit was contested on the defenses that what was purchased by the respondent was only the vested remainder in the 2/5th share in those items, the 6th defendant having a life-interest therein, and that the purchase of the 2nd defendants share was void and did not pass any title to the plaintiff in that at the time of the transaction the 2nd defendant was an un-discharged insolvent. The trial Court overruled the objection relating to the share of the 1st defendant in the view that the sale certificate conveyed absolute title to the purchaser in the 1st defendants share but gave effect to it in so far as it concerned the 2nd defendants share. The learned Judge relied on Ex. D-4, an extract of the Civil Register in I. P. No. 63 of 1933 on the file of the Subordinate Judges Court, Kakinada, which showed that the annulment was made long after the sale of the 2nd defendants share, which took place on the 22nd of August 1944, in coming to the conclusion that the transaction was an ineffective one. The 6th defendant who was one of the parties aggrieved by the judgment of the trial Court filed an appeal in regard to the 1st defendants share in the Subordinate Judges Court, Amalapuram, That appeal was allowed and the suit was dismissed even in regard to the 1st defendants share. We are not concerned with the reasons adduced by the Subordinate Judge for allowing the appeal as nothing turns upon it in this enquiry. The plaintiff presented a Second Appeal on the 5th of February 1948 in the High Court of Madras against the decree of the Subordinate Judge. The Second Appeal was allowed and the trial Courts decree was restored on the 22nd of October 1951.

(3.) Meanwhile the plaintiff, who could obtain a certified copy of the order annulling the adjudication of the 2nd defendant, applied to [he trial Court for a review of its judgment dealing with the 2nd defendants share. That document, Ex. A-3 established that the adjudication of the 2nd defendant was annulled long before the sale, viz.. on the 6th of April 1943. The review petition was accepted on the strength of Ex. A-3, It is against the order allowing the review petition, that the present Revision Petition is filed.