PULAVARTHI AMMANNA Vs. BOMMIREDDIPALLI RAMAKRISHNA RAO

JUDGEMENT

(1.) This is an appeal against the decree and judgment of the learned Subordinate Judge of Ellore in O.S. No. 42 of 1944. The plaintiffs are the appellants. The suit was for a declaration that the plaintiffs were entitled to a three-fifths share of the properties in the plaint schedule representing the interests of defendants 4 to 6 and to such specific items as may be allotted to defendants 4 to 6 in the final decree in O.S. No. 52 of 1931 and to the net income pertaining to the said share in deposit or to be deposited in the said O.S. No. 52 of 1931 on the file of the Subordinate Judge's Court, Ellore, or in the alternative, for a declaration that the plaintiffs were entitled to redeem the mortgage, dated 25 October, 1931, executed by defendants 4 to 7 and others in favour of the Imperial Bank of India and to pass a decree in favour of the plaintiffs permitting the plaintiffs to redeem defendants 1 to 3 and their successors in interest on payment of such amount as may be found due to them. The learned Subordinate Judge passed a decree declaring that the plaintiffs were entitled to a 11/75 share in the properties in the plaint schedule as well as in the income of the said share which was in deposit in O.S. No. 52 of 1931. The rest of their claim was dismissed. In their appeal, they claim the reliefs which they claimed in the plaint. Defendants 2, 3, and the legal representatives of the first defendant, who died pending the suit, have filed a memorandum of cross-objections, praying inter alia that the plaintiffs suit should be dismissed in toto.

(2.) The facts of the case are complicated, but it is necessary to set them out in some detail to understand the contentions of the parties. The properties originally belonged to the members of the Cherukuvada family, consisting of five undivided brothers, defendants 4 to 6, the father of the 7 defendant, and the father of the 8 defendant. The 4 defendant has four sons. The 5 defendant has two sons, and the 6 defendant, four sons. On 25 January, 1932, the 1 plaintiff filed a creditor's petition, I.P. No. 8 of 1932 in the Court of the Subordinate Judge at Ellore, to adjudicate defendants 4 to 6 insolvents. The petition was transferred to the Court of the Subordinate Judge at Narsapur, and re-numbered as I.P. No. 92 of 1933 on the file of that Court. On 26 September, 1933, defendants 4 to 6 were adjudicated insolvents, and their rights vested in the Official Receiver, West Godavari.

(3.) The Cherukuvada brothers were indebted to the Imperial Bank of India at Rajahmundry and defendants 4 to 7 and the sons of defendants 4 to 6 had executed on 25 October, 1931, a mortgage of all their properties in favour of the bank. On the foot of the said mortgage and the promissory notes which formed the consideration for the mortgage, the Imperial Bank filed two suits in the Court of the Subordinate Judge of Ellore, O.S. Nos. 11 and 12 of 1932. To those suits, defendants 4 to 7 as well as the sons of defendants 4 to 6 were made parties. Preliminary decrees were passed in the two suits on 30 July, 1934) and the final decrees on 27 July, 1935. Though defendants 4 to 6 had been adjudicated insolvents on 26th September, 1933, the Official Receiver was not brought on record in either suit. The Imperial Bank transferred the two decrees obtained by them for consideration in favour of defendants 1 and 2. The bank filed E.P. No. 96 of 1935 in O.S. No. 12 of 1932 on 16 September, 1935. The relief prayed for in the petition was to add the Official Receiver, West Godavari as 18 defendant in the decree as the defendants 4, 9, 11 and 16 were adjudicated insolvents and to sell the properties described in the schedule herewith filed which were ordered to be sold under the decree under Order XXI, Rules 64 and 66, Civil Procedure Code ", and " to pay the sale proceeds to the plaintiff in satisfaction of the: decree amount. Defendants 4, 9 and 11 are the present defendants 3, 5 and 6. The Court raised an objection that there should be a separate petition by the decree-holder to add the Official Receiver as defendant. A formal petition was thereupon filed, and by an ex parte order, dated 24 October, 1935, the Official Receiver was added as defendant 18. On 18 December, 1935, the Court ordered sale notice to judgment-debtors. On 24 January, 1936, a notice was issued to the Official Receiver, West Godavari, informing him that as the decree-holder had applied for the sale of the defendants immoveable property, the 10 day of February had been fixed for settling the terms of the proclamation of sale. This notice was received by the Official Receiver on 31 January, 1936 (Ex. D-17). On 24th February, 1936, when the execution petition was called, the Official Receiver was absent; and it is common ground that he did not take any part in the execution proceedings. As the bank had transferred the decrees in favour of the present defendants 1 and 2, they filed a petition to recognise the transfer and to permit them to continue the execution petition. On 28 January, 1937, the transfer was recognised. On and February, 1937, the Court ordered the properties to be proclaimed and sold on 6 April, 1937.