MATHURI SURYANJANEYALU Vs. THUMMALASETTO VENKATESWARLU
HIGH COURT OF ANDHRA PRADESH
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(1.) This is an appeal filed by defendant 1 as against the order of remand passed by the Subordinate Judge of Tenali in Appeal Suit No. 113 of 1949.( The suit was dismissed by the District Munsif of Repalle on the ground that it was not maintainable and that the remedy of the plaintiff was only by an application under S. 47, Civil P. C. For the purpose of appreciating the contention based on S. 47, Civil P. C., it is sufficient to set out a few relevant facts.
(2.) Venkateswarlu, respondent 1 herein purchased an undivided 2/3rd share of the suit properties in execution of a money-decree as against the appellant and his sons for Rs. 518/- on 29-6-1936. The sale was confirmed on 31.7.1936, and though he applied for delivery on 28.6.1939, it was dismissed as not pressed. The present suit is for recovery of possession of 3 acres 5 cents out of the schedule land or in the alternative for partition and recovery of possession of 2/3rd share of the plaint schedule land.
(3.) The main contention addressed on behalf of the appellant is that Venkateswaralu, the decree-holder-auction-purchaser ought to have applied for possession under O. 21, R. 95 or R. 96, Civil P. C., and that as he did not obtain delivery of possession, his suit for partition is not maintainable.;
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