V K MURUGAPPA MUDALIAR Vs. P M DESAPPA NAYANIM VARU

JUDGEMENT

(1.) The plaintiff in O. S. No. 44 of 1946 in the Court of the Subordinate Judge of Chittoor is the appellant. The suit was for a declaration of his title to certain properties described in schedule A to the plaint and for an injunction restraining the defendants from interfering with his possession and enjoyment of some of the items in schedule A described separately in schedule B.

(2.) The suit properties according to the plaintiff originally belonged to one Megavarnam Nayanim Varu, the father of defendants 1 and 2 and the grandfather of defendant 5. One K. L. Narasimhachari obtained a decree in O. S. No. 45 of 1940 on the file of the Sub-Court, Chittoor against the present defendants 1 and 2 and the father of defendant 5 for the amount due to him under a promissory note executed by Megavarnam. That decree was passed on 19th June 1940. After two applications filed in 1941, E. P. No. 3 of 1942 was filed by the original decree-holder against the father of defendant 5, defendants 1 and 2 who was then a minor represented by his mother as his guardian in which inter alia there was a prayer for attachment of properties belonging to the family including the suit properties. It is not disputed that the suit properties meaning thereby the right, title and interest of Megavarnam's branch in Paimash numbers set out in the schedule were attached on 29th March 1942. While this execution petition was pending another application E. P. No. 149 of 1942, was filed by a person who sought to be brought on record as transferee decree-holder, viz., Periya Dasappa Mudali. He was eventually brought on record as transferee on 10th December 1942. On 3rd December 1942 there was an order calling upon the decree-holders to produce a draft sale proclamation and further time was granted on 17th December 1942 till 2nd January 1943. On 2nd January 1943 the following order was made on the execution petition :

(3.) The main contesting defendants were defendants 2 and 6. Defendant 6 claimed to be the purchaser of the suit properties, i. e., the half share belonging to Megavaraam under sale deed dated 12th December 1942 (EX. D- 2). He contended that his sale would prevail over the auction sale in favour of the plaintiff. Defendant 2's plea was that during the execution proceedings he attained majority but he was not declared a major and no notice was served on him as a major before the date of sale. There was also a plea that the decree in O. S. no. 45 of 1940 was not valid and binding on him because there was no proper and valid appointment of guardian and because the guardian was guilty of gross negligence and fraud. But this plea has not been persisted in.