SIDDAREDDIGARI CHANGAL REDDI Vs. MOHAMMAL CHORDIA

JUDGEMENT

(1.) The appellants were the legal representatives of the fourth defendant in O.S. No. 1 of 1927 on the file of the Subordinate Judge's Court of Chittoor and the appeal arises out of proceedings by way of restitution consequent on the modification of the decree passed in O.S. No. 1 of 1927 under the orders of the appellate Court. The suit was for the recovery of the additional amount paid by the plaintiff over and above what he was bound to pay in respect of the property. He claimed in respect of the amount sought to be recovered a charge on several villages comprised in the Karvetnagar Zamindari. The decree passed on 30th March, 1929, by the Subordinate Judge's Court was for Rs. 73,000 and odd. Guntapalli was one of the 13 villages comprised in Schedule B of the plaint over which a charge was claimed and under the decree the charge was given over that village and a few others to the extent of three-tenths only of the decree amount. After the decree was passed the village of Guntapalli in which the appellants claim an interest was brought to sale and sold for Rs. 900 on 12 Jujy, 1933. Subsequently on appeal the amount decreed was reduced to Rs. 2,780 odd and even that liability was directed by the appellate Court to be apportioned by the lower Court as between the several villages as per Section 45 of the Madras Revenue Recovery Act in so far as B schedule properties of which Guntapalli was one was concerned. This appellate decree was passed long subsequent to the sale of that village. The decree-holder was the purchaser and he Sold the village to the second respondent on 29 November, 1934, prior to the passing of the appellate decree.

(2.) After the appellate decree was passed a petition was filed in the Subordinate Judge's Court for apportioning the liability as between the several villages over which there was the charge. That petition, E.P. No. 26 of 1937, was filed on 26th October, 1936. The fourth defendant whose legal representatives the present appellants are, filed a counter to that petition on 14 December, 1937, in which he contended that the sale in respect of this village must be deemed to have been cancelled by reason of the variation of the decree and that the village will have to be re-delivered to the judgment-debtors and that it was only after that was done that the apportionment should be made. During the pendency of that petition this petition out of which the present appeal arises, namely, E.P. No. 35 of 1941 was filed praying for the re-delivery of the properties by reason of the fact that the petitioners are entitled to get the village by way of restitution as the sale must be deemed to have been set aside by the variation in the decree in execution of which the village was brought to sale. Various pleas were raised. One of them was that the petition was barred by limitation as it was filed more than three years after the date of the appellate decree modifying the original decree. Another contention was that the sale cannot be said to have been set aside by reason of the modification of the decree as the second respondent claimed to be a bona fide purchaser for value whose rights could not be affected by the variation of the decree. The learned Subordinate Judge held that the petition was barred by limitation and that the petitioners were not entitled to treat the sale as having been set aside. He also made the observation that the second respondent was a bona fide purchaser for value. But as he found that the petition was barred by limitation he dismissed the same. Hence this appeal.

(3.) The points that arise for consideration are (1) whether the petition was barred by limitation, (2) whether in the circumstances of the case the sale must be considered to have been set aside by reason of the variation in the decree, and (3) whether the second respondent was a bona fide purchaser who would not be affected by the variation of the decree in appeal.