Decided on October 31,1963



Satyanarayana Raju, J. - (1.) The 1st plaintiff is the appellant in this appeal which arises out of the judgment and decree of the Court of the Subordinate Judge, Bapalla, in Original Suit No. 4 of 1958. That was a suit for a declaration of the plaintiffs title to the plaint schedule properties and for a permanent injunction restraining the defendants from laying any claim or dealing with the properties in any manner, and for rendition of accounts for the income of the suit properties from 1948-49 to 1956-57.
(2.) The plaintiffs are the sons of one Peda Nagaraju and are residents of Khajipalem, in the Bapatla Taluk of the Guntur District. The 1st defendant is the Official Receiver, Guntur. The 2nd defendant is a resident of Kottarajulapalem, hamlet of Karlapatem, situated within the same District.
(3.) The material facts which have given rise to this appeal may be briefly stated. An extent of Ac. 39-30 cents of land, partly situated in the village of Khajipalem and partly in Ganapavaram, originally belonged to the plaintiffs. Out of it an extent of Ac. 18-95 cents of land, is comprised in the plaint schedule. The plaintiffs executed a mortgage deed in respect of the total extent of Ac. 39-90 cents in favour of Govada Ranganayakulu and two others. The first of them obtained a decree in O. S. No. 78 of 1943 on the file of the Court of the Subordinate Judge, Bapatla, on the foot of the mortgage. Belpre the hypotheca was brought to sale in execution of the mortgage decree, the plaintiffs and the 2nd defendant entered into a contract of sale on 12/04/1948, under which the 2nd defendant agreed to purchase the entire extent of Ac. 39.90 cents of land at Rs. 900.00per acre. On the date of the contract, a sum of Rs. 5,500.00 was paid as earnest money and it was agreed that out of the balance of consideration, the vendee should discharge the debts of the plaintiffs and that on demand by the 2nd defendant after payment of the balance of the consideration, a sale deed should be executed by the plaintiffs. While so, the decree-holder in O. S. No. 78 of 1943 brought the entirety of the extent of Ac. 39-90 cents of land, which was the subject-matter of the contract of sale, (Ex. A-1) to sale in execution of his decree. The 2nd defendant purchased an extent of Ac. 20-25 cents out of the Ac. 39-90 cents in the Court auction sale, with his own monies. Thereafter the plaintiffs filed a petition to set aside the Court sale, but it was dismissed. Against the order dismissing their petition, they filed an appeal to the High Court of Madras, which was subsequently transferred to the file of the High Court of Andhra. The appeal was dismissed on 24/08/1956. While the said appeal was pending, on 21/04/1956, a creditor of the 2nd defendant filed a petition for adjudicating him as an insolvent. During the pendency of the insolvency petition, the Official Receiver was appointed as interim Receiver by an order of the Court of the Subordinate Judge, Bapatla, dated 3/12/1956. The 2nd defendant was adjudged an insolvent by the order of the Court dated 29/03/1957. These facts are not disputed.;

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