MODIBOYINA BASAVAIAH Vs. KANDALI VENKATASUBBAREDDI
LAWS(APH)-1969-1-1
HIGH COURT OF ANDHRA PRADESH
Decided on January 03,1969

MODIBOYINA BASAVAIAH Appellant
VERSUS
KANDALI VENKATASUBBAREDDI,DORAGARLA VENGAIAH Respondents


Cited Judgements :-

MANNE VENKATA SUBBAMMA VS. MANEPALLI MALLIKHARJUNUDU [LAWS(APH)-1973-7-1] [REFERRED TO]
K RAMAKOTAIAH VS. M SUBBARAO [LAWS(APH)-1981-12-12] [REFERRED TO]


JUDGEMENT

- (1.)This second appeal arises out of an action commenced by the appellant to establish his right to attach and sell the property of the 1st defendant in execution of a decree against the latter. The 2nd defendant set up a right under an unregistered document of 22nd Tune, 1959, pursuant to which the 1st defendant is said to have received the entire price of Rs. 700/- and made over possession of the property to the 2nd defendant The appellant obtained a decree on 14th April, 1961 against the 1st defendant and proceeded to attach the property now in dispute on the 25th of March, 1963. The claim made by the 2nd defendant was allowed on 11th February, 1964, and the order made by the executing court is Ex; A. 1. The validity of this Order has been impugned by the appellant in this suit.
(2.)The trial Court granted the decree asked for by the plaintiff. It held that the unregistered document relied upon by the 2nd defendant is not a mere agreement and that it purports to be the instrument of sale and is inadmissible in evidence. The trial Court also held that Ex. B. 1 relied upon by the 2nd defendant was "got up for the purpose of evading the decree debt" of the plaintiff. The lower appellate court held that Ex, B, 1 was a genuine document and that pursuant to the transactions evidenced by Ex.B. 1 the 2nd defendant was put in possession of the property, The result, according to the District Judge, is that, the 1st Defendant himself was precluded from enforcing any right regarding the property and that the attaching creditor cannot have a better right than the 1st defendant himself. The appeal was allowed by the lower appellate Court.
(3.)The plaintiff has preferred this Second Appeal. Two main contentions had been urged by Mr. Gangadhara Rao for the appellant. In the first place, he questioned the validity of the finding of the lower appellate Court in respect of Ex. B. 1. Secondly, he argued that the attaching decree-holder is not a person claiming under the transfer and consequently it is not open to the 2nd defendant to contend that the appellant is a representative of the transferor and is precluded from asserting the right to attach and sell the property.
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