KANTEETI RAMKRISHNA DAS BEING MINOR Vs. SAMA PURNACHANDRA RAO AND OTHERS, DEFENDANTS

JUDGEMENT

(1.) The three appellants in this second appeal feel aggrieved by the decision of the Additional Subordinate Judge, Masulipatam, in A.S. No.64 of 1956 on his file whereby he confirmed the judgment of the District Munsif, Masulipatam dismissing O.S. No.295 of 1954 in which these three appellants were the plaintiffs.

(2.) Sama Purnachandra Rao respondent No.1 filed O.S. No.506 of 1931 in the District Munsif's Court, Bapatla, for a decree against eight defendants. The first defendant in that suit was Dara Subba Rao, who was said to be the manager of the joint family consisting of himself, his two brothers who were D-2 and D-3 (in that suit) and also of D-4 to D-7. D-5 in that suit was the son of a predeceased brother of Dara Subba Rao. Defendants 6 and 7 were the sons of D-3 in that suit. D-4 in that suit was the adopted son of D-1 viz. Dara Subba Rao (for the sake of convenience, hereafter I shall refer to D-1 in that suit as Dara Subba Rao, D-1, D-2, D-3 as insolvents and D-4 to D-7 in that suit as non-insolvents). Purnachandra Rao filed an I.A. for attachment of the properties of D-1 to D-7 before judgment and an order was passed by the District Munsif on 4-6-1931 ordering attachment before judgment. Accordingly, the properties were attached including the property concerned in the present appeal, which is a portion of a house bearing Municipal No.582 in Kojjilpet in Masulipatam town. Subsequently, a decree was passed against D-1 to D-7 on 9-1-1932. Meanwhile, on 4-7-1931, a creditor filed I.P. No.57/31 in the District Court, Krishna for adjudicating as insolvents the seven persons who were defendants 1 to 7 in O.S. No.506 of 1931. The District Court passed orders on 26-11-32 adjudicating Dara Subba Rao and his two brothers' alone as insolvents and dismissing the petition as against others namely, the non-insolvents. On 23-3-1933, the Official Receiver held sale of properties. In that sale, one K. Anjaneyulu purchased the property concerned in this suit (viz.,) one portion of house No.582, Kojjilipet. One Dara Siva Rao purchased the other portion of that house. Later, on 21-9-1937, the Insolvency Court passed an order in I.A. No.631 of 1936 discharging the three insolvents.

(3.) Subsequently, Purnachandra Rao filed E.P. Nos.482/43 and 488/43 in District Munsif's Court, Masulipatam in execution of his decree in O.S. No.506 of 1931. K. Anjaneyulu filed. E.A. No.301/48 praying that the property which had been purchased by him in the Insolvency proceedings (herein referred to for convenience as "suit property") be sold last. Purnachandra Rao did not have any objection to such course and the petition was, accordingly, ordered on 2-3-48. Ex. B-6 contains the order. Subsequently, there was some litigation as a result of which Purnachandra Rao entered into a compromise in A.S. No.16 of 1951 on the file of the Sub Court, Masulipatam, under which Purnachandra Rao gave up from scope of execution of his decree in O.S. No.508 of 1931 the other portion of house No.582, which had been purchased by Dara Siva Rao, E.P. No.482/43 was still pending. Purnachandra Rao decree-holder sought to bring to sale the suit property, i.e. the item which had been purchased by K. Anjaneyulu. The latter was dead. His son, Ram Krishna Das (as plaintiff No.1) along with two other plaintiffs who were executors (2nd plaintiff being the mother and guardian of the then minor plaintiff No.1) filed E.A. No.1475 of 1953 a petition under Sections 47, 151 and Order 21 R. 58 C.P.C. claiming the property as belonging to plaintiff No.1 and contending that the decree in O.S. No.506 of 1931 had become extinct and was no longer executable. In that E.A. the judgment-debtors in O.S. No.506 of 1931 were impleaded as respondents 2 to 8. Among them, respondents 6 to 8 were the widow and minor sons of Dara Gopalakrishniah who was D-4 in O.S. No.506/31 and was the adopted son of Dara Subba Rao (D-1 in O.S. No.506 of 1931). By the consent of parties E.A. No.1475/53 was registered as a suit and numbered by the executing Court as O.S. No.295 of 1954. Purnachandra Rao, contested the suit. On behalf of D-6 and D-7, a court guardian was appointed and he filed a written statement. The other defendants remained ex parte.