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2012 DIGILAW 1105 (AP)

Bollu Prabhakar Rao v. Maruvada Appa Rao (Died)

2012-11-08

L.NARASIMHA REDDY

body2012
Judgment The 11th respondent herein, by name Kasireddy Satyanarayana, (for short ‘the plaintiff’) filed O.S.No.100 of 1996 on the file of the learned Senior Civil Judge, Vizianagaram, against Maruvada Venkata Rao and his son, Nageswara Rao, respondents 12 and 13 herein (for short ‘defendants 1 and 2) (for short ‘defendants 1 and 2), for recovery of certain amount. During the pendency of the suit, Venkat Rao died. However, the plaintiff did not bring the legal representatives of the deceased-defendant No.1 in the suit on record. Thereupon, the suit abated against Venkat Rao. After trial, the trial Court passed a decree on 11.02.1997 against defendant No.2. During the pendency of the suit, an item of immovable property owned by defendant No.1 was attached before judgment under Order 38 Rule 5 C.P.C. After the decree became final, the plaintiff filed E.P.No.142 of 1997 in the Court of Senior Civil Judge, Vizianagaram. The attached item was brought to sale. The petitioner emerged as the highest bidder. The legal representatives of defendant No.1 i.e., respondents 1 to 10 herein filed E.A.No.422 of 1998 raising objection to the sale of the property. According to them, once the suit abated, against defendant No.1, there was no basis to put an item of property held by him, to sale. The executing Court dismissed the E.A., through order dated 20.12.1993. Aggrieved thereby, respondents 1 to 10 filed C.M.A.No.7 of 2004 in the Court of I Additional District Judge, Vizianagaram. The appeal was allowed through order, dated 10.09.2008. Hence, this revision. Sri Aravala Rama Rao, learned counsel for the petitioner submits that loan was borrowed jointly by defendants 1 and 2 and once one of the sons of the deceased defendant is on record, the suit did not abate at all. He submits that the observation made by the trial Court to the effect that the decree may be executed against defendant No.2, cannot be construed as a bar for the execution of the decree against the estate of the deceased-defendant No.1. Smt. Bhaskara Lakshmi, learned counsel for defendant No.2, on the other hand, submits that the E.P. has already been closed on reporting of full satisfaction and the very sale has become untenable. It is also stated that the sale conducted by the trial Court was contrary to the decree in the suit. The plaintiff filed a suit for recovery of amount against defendants 1 and 2. It is also stated that the sale conducted by the trial Court was contrary to the decree in the suit. The plaintiff filed a suit for recovery of amount against defendants 1 and 2. During the pendency of the suit, defendant No.1 died. Though his son i.e., the defendant No.2 was on record, it was in his independent capacity as a borrower. In case, the plaintiff was of the view that the estate of defendant No.1 is represented by defendant No.2, he ought to have filed a memo to that effect. Had the trial Court made an endorsement to that effect, things would have been different altogether. However, no such effort was made. The result is that the suit abated against defendant No.1. The decree was specifically passed against defendant No.2 alone. It is not in dispute that the property that was brought to sale was owned by the deceased-defendant No.1. The estate devolved upon several legal representatives including, respondents 1 to 10 herein and defendant No.2. Though the executing Court repelled the contention raised against the sale of the property, the lower appellate Court has taken the correct view. Besides, the decretal amount was deposited to the satisfaction of the plaintiff and the executing Court has closed the E.P. by recording full satisfaction. With that, the very sale of the property becomes redundant. Viewed from any angle, the sale cannot be confirmed in favour of the petitioner. Hence, the civil revision petition is dismissed. It is however directed that it shall be open to the petitioner to withdraw the amount deposited by him. The miscellaneous petition filed in this civil revision petition shall also stand disposed of. There shall be no order as to costs.