MODIBOYINA BASAVAIAH Vs. KANDALI VENKATASUBBAREDDI
HIGH COURT OF ANDHRA PRADESH
KANDALI VENKATASUBBAREDDI,DORAGARLA VENGAIAH
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(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
(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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