Partly allowed

Venigalla Pullaiah v. Golla Venkata Krishna

Telangana HC1 Jul 2013AS/271/2013

Case brief

AI extract

What is this about?

This appeal challenges the Trial Court's order in an execution claim petition. The Court upheld the appellant's title to 1/5th share of auctioned property subject to co-owner objections but dismissed the claim to resist sale of another property based solely on an alleged agreement of sale.

What did the court decide?

Purchase of item No.1 of E.P. Schedule property by the appellant shall be absolute, subject to co-owners of Respondent No.3 raising objections; appeal dismissed regarding item No.2.

Venigalla Pullaiah Vs Golla Venkata Krishna — Execution and Attachment | Telangana HC (2013)

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HON’BLE SRI JUSTICE L. NARASIMHA REDDY AND

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HON’BLE SRI JUSTICE S.V. BHATT APPEAL SUIT No.271 OF 2013

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JUDGMENT: (Per Hon’ble Sri Justice L. Narasimha Reddy)

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Respondent Nos.1 and 2 herein filed O.S. No.828 of 2008 in the Court of Principal District Judge, Ranga Reddy District, at L.B. Nagar, Hyderabad, against respondent Nos.3 to 5 herein for recovery of certain amount on the strength of promissory notes. During the pendency of the suit itself, respondent Nos.1 and 2 obtained an order of attachment before judgment on 02-09-2008 in respect of two items of immovable properties. The suit was decreed

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on 06-07-2009. The said decree became final. Respondent Nos.1 and 2 filed E.P. No.137 of 2010 in the Court of III Additional Chief Judge, Guntur, after obtaining the precept. Steps were initiated against the E.P schedule properties, which are already under attachment.

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The appellant herein filed claim petition in E.A. No.25 of 2011 under Rule – 58 of Order – XXI of the Code of Civil Procedure, 1908. According to him, item No.1 of the E.P. schedule property was brought to sale, by Vijayawada branch of Axis Bank, on the strength of a mortgage and that he purchased the same by participating in the auction. As regards item No.2, he pleaded that there exists an agreement of sale in his favour.

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The trial Court partly allowed the E.A. through its order dated 15-02-2013 sustaining the claim of the appellant to the extent of 1/5^th share in item No.1 of the E.P. schedule property. His claim vis-àvis item No.2 was rejected. Hence, this appeal.

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Heard Sri G. Vasantha Rayudu, learned counsel for the appellant, and Sri Kishore Rai, learned counsel for respondent Nos.1 and 2.

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In the E.P filed by the respondents 1 and 2, for execution of the decree, in O.S.No.828 of 2008, the appellant filed a claim petition in respect of the two items, which are already under attachment. Since the claim petition is required to be dealt with

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in the same manner, as if the suit, the trial Court framed the following points, for its consideration:

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1. “Whether the Petitioner has got right and title over the item No.1 and 2 of the E.P. schedule property?

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2. Whether the Petitioner is entitled to raise attachment over item No.1 and 2 of the EP schedule property?”

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The appellant deposed as PW-1 and he filed Exs.A-1 to A-8, which included the sale certificate, in respect of the first item of the property, and agreement of sale in respect of the second item. No oral evidence was adduced by the respondents, and a notice issued by the Axis Bank was marked as Ex.B-1. The nature of disposal given by the trial Court in the E.A has already been indicated. Now, it needs to be seen as to,

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1) whether the appellant derived absolute right over item-1 of the E.P schedule property; and

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2) whether the appellant can resist the sale of item-2 of the suit schedule property, on the basis of the alleged agreement of sale, Ex.A-3.

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Item-1 of the E.P. schedule property was originally owned by late Muvva Sankara Rao. He left behind him his wife, the

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5^th respondent, his son, the 3^rd respondent, and another son,

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by name, Siva Suryanarayana and two daughters. The

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3^rd respondent borrowed amount from M/s Axis Bank. Though his share was only 1/5^th in the first item, he mortgaged the entire property. That, in turn, was brought to sale, and the appellant emerged as the highest bidder. That very property was sought to be sold in the execution of the decree, in O.S.No.828 of 2008, filed by the respondents 1 and 2. Though the appellant emerged as the highest bidder for the property, he cannot derive title for the extent, over and above what was held by the mortgagor himself. When the mortgagee itself cannot derive, the greater or better title,

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than what its own mortgagor had, it cannot pass on a better title to the auction-purchaser. Viewed in this angle, the entitlement of the appellant in item-1 can be restricted only to 1/5^th share; and the finding recorded by the trial Court in this regard deserves to be upheld. Notwithstanding this, the appellant would continue to be the owner of the entire property, unless the other aggrieved

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co-owners, along with respondent No.3, raise any objection. Therefore, the appellant deserves to be treated as owner of item-1, of the E.P. schedule property, subject, however, to the claim of other coowners of respondent No.3.

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Coming to the point No.2: The basis for the appellant to lay claim against item-2 of the suit schedule property is, an alleged agreement of sale, marked as Ex.A-3. Even if it is true, the appellant does not derive any title. The only course open to him is, to file a suit for specific performance of agreement of sale. That not having been done, the appellant cannot resist the sale. Accordingly, the point No.2 is answered against the respondents.

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Hence, the Appeal is partly allowed, directing that, purchase of

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item No.1 of the E.P. Schedule property by the appellant shall be absolute, till any of the co-owners of 3^rd respondent raises any objection, vis-à-vis M/s Axis Bank, which brought the property to sale. The appeal is dismissed insofar as it relates to item No.2 of the suit schedule property.

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The miscellaneous petitions filed in this appeal shall also stand disposed of. There shall be no order as to costs.

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______________________ L. NARASIMHA REDDY, J

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______________________ S.V. BHATT, J Dt.01-07-2013. PV/KO

Venigalla Pullaiah v. Golla Venkata Krishna

Case brief

What is this about?

What did the court decide?

Venigalla Pullaiah v. Golla Venkata Krishna

Case brief

What is this about?

What did the court decide?

What the court decided

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