YARLAGADDA RATTAYYA Vs. MODUMUDI CO-OPERATIVE CREDIT SOCIETY REPRESENTED BY ITS PRESIDENT SANAKA RATTAYYA

JUDGEMENT

(1.) The plaintiff is the appellant and the appeal arises out of a suit for a declaration that it is not open to defendants 1 and 3 to take out execution proceedings against the property described in the plaint and claimed by the plaintiff as his own. The properties in question and another item of property were originally mortgaged to the 1 defendant Co-operative Society by the 2nd defendant. Subsequently there was a sale in respect of the properties comprised in the suit to the plaintiff-appellant without disclosing the prior mortgage and as if there were no incumbrances in the property. The Deputy Registrar of Co-operative Societies, Bezwada acting as a Sale Officer, in execution of the award passed in respect of the mortgage ordered the sale of a property which was not mortgaged and which did not belong to the 2nd defendant. Money was realised by the sale and out of the sale proceeds the Co-operative Society was paid the amount due to it under the award. The balance of the amount was paid over to the 2nd defendant as if he were the Owner of it. The purchaser subsequently found that the property did not belong to the 2nd defendant and was not mortgaged to the Society and that there was a mistake in the sale and moved the Deputy Registrar to set aside the sale. He set aside the sale accordingly. The 1 defendant Society thereupon moved the 3 defendant to execute the award by proceeding against the properties which were the subject-matter of the same. The plaintiff-appellant who is entitled to two of the properties by right of purchase subsequent to the mortgage wants a declaration that, inasmuch as the award had been fully satisfied by payment of the money realised by the sale of the incorrect item, it will not be open to the 1st defendant to execute the decree, his further contention being that the order setting aside the sale was without jurisdiction and invalid and consequently, the decree must be considered to have been fully satisfied and that no, execution could be taken out as against his properties.

(2.) The first Court found that the Deputy Registrar had no jurisdiction to set aside the sale, that the award must be considered to have been fully satisfied and that consequently the decree could not be executed as against the appellant and decreed the suit. But the lower appellate Court, though it came to the conclusion that the Deputy Registrar had no jurisdiction to set aside the sale, was of opinion that the plaintiff's remedy was not by means of a separate suit and that the proper course was to take proceedings under Section 57 of the Co- operative Societies Act and that the suit was hence not maintainable. He allowed the appeal and dismissed the suit. Hence this appeal.

(3.) The points for consideration are: (1) Whether the order of the Deputy Registrar setting aside the sale is invalid? (2) If so, was the plaintiff entitled to file the suit for a declaration that the decree cannot be executed ? (3) Whether the plaintiff is entitled to the discretionary relief sought for, in view of the fact that the 1 defendant had, subsequent to the suit, to pay the money which he realised in satisfaction of the decree back to the purchaser?