KAZA SIVARAMAKRISHNA RAO Vs. JONNALAGADDA SEETHARAMAYYA

JUDGEMENT

(1.) This Letters Patent appeal raises a question with regard to the powers conferred by Section 42, Civil P. C, on a Court to which a decree has been transferred for purposes of execution. In order to understand what is involved we must set the facts in this case.

(2.) On 31 May 1925 respondent 3 mortgaged a house belonging to him in Bezwada to the Cooperative Building Society of Bezwada to secure a sum of Rs. 4000. On 20 September 1926 respondent 3 and his sons (respondents 4 and 5) created a second mortgage on this property in favour of respondent 2 and by the same deed a first mortgage on other properties consisting of agricultural lands. Subsequently the Building Society advanced to respondent 3 a further sum of Rs. 800 in respect of which it obtained a third charge on the house. Respondent 3 failed to repay to the Building Society the moneys advanced by it to him and on 20 December 1933 the Building Society obtained an award against him. This was executed on 16 December 1934 and at the auction the property was purchased by the appellant. In the meantime respondent 2 instituted a suit in the District Court of Kistna to enforce the mortgage which respondent 3 and his sons had created in his favour on 20 September 1926. The District Court had jurisdiction by reason of the fact that the lands in respect of which respondent 2 had obtained a first mortgage were situate within the territorial limits of the District Court's jurisdiction. The suit remained on the file of the District Court until 16 November 1936, when it was transferred to the Court of the Subordinate Judge of Masulipatam. By that time respondent 2 had assigned the mortgage to respondent 1, who became plaintiff 2 in the suit.

(3.) On 16 August 1938, respondent 1 obtained from the Subordinate Judge a preliminary decree and on 13 December 1940, a final decree. On 19 March 1941, the decree of the Subordinate Court was transferred to the District Court of Kistna for execution. As the decree-holder had not obtained an encumbrance certificate in" respect of the agricultural lands and as the Court refused to grant him further time for its production, the application for execution was proceeded with only in respect of the house in Bezwada, the sale of which was fixed for 2nd February 1942. The appellant became aware of the course of events in January and on 26 of that month he filed a petition asking for an order directing the decree-holder to proceed first in execution against the lands in the Kistna district. This application was, however, not pressed and was formally dismissed on the day fixed for the sale of the house in Bezwada. Respondent 1 purchased the property at the auction.