HOTA VEERABADHRAYYA Vs. BOLLA BULLI SUBBARAYUDU

JUDGEMENT

(1.) The ultimate transaction which has given rise to these appeals is the sale by defendants 2 to 4 of certain properties to defendant 1 in December, 1929. The consideration of Rs. 2,500 was by the terms of the sale-deed retained in the hands of defendant 1 for the purpose of discharging two debts due to plaintiff; one on a first mortgage and the other on a promissory note. The property sold was subject also to a second and a third mortgage. These mortgages the Vendors undertook to discharge.

(2.) Defendant 1 did not discharge the promissory note debt and plaintiff accordingly sued in 1931 to recover it and obtained decree against defendants 2 to 4. In execution of that decree he attached the debt which he alleged to be due from defendant 1 to defendants 2 to 4 as unpaid purchase-money in respect of the sale. On notice being sent to defendant 1, he denied that any debt was due, con-1 ending that he was under no liability to pay the purchase-money until defendants 2 to 4 had cleared off the second and third, mortgages. The executing Court accepting this contention raised the attachment on 1 August, 1935. Plaintiff thereupon filed the present suit (O.S. No. 188 of 1936) under Order 21, Rule 63 impleading all four defendants. The suit was dismissed by the learned District Munsif of Razole.

(3.) Meanwhile in August, 1936, defendants 2 to 4 transferred to defendant 5, their right to receive from defendant 1 the unpaid purchase-money. Defendant 5 in 1937 paid off the second and third mortgages, and then in O.S. No. 23 of 1938, sued defendant 1 for the money, and. obtained a decree. The decree, however, did not award him interest from the date of the sale transaction. Against this part of the decree defendant 5 appealed and this appeal (A.S. No. 4811940), was heard recently by me sitting with Lakshmana Rao,. J. We confirmed, the decree refusing interest for the whole period until defendant 5 paid off the two mortgages, holding that under Section 55 (5) (b) of the Transfer of Property Act, defendant 1 was entitled to retain the purchase-money in his hands.