2,500 in favour of Achutaramaraju.
On 14 12 1911 Achutaramaraju executed a mortgage for Rs.
On 20 1 1924 the representatives of Merla Agastayya assigned their interests in the mortgage, Exhibit C, to the present appellant, who instituted O.S. No.
In the plaint, it was alleged that the properties companyprised in the mortgage deed, Exhibit C, companysisted of the properties belonging to the mortgagors in full ownership as companysharers and also of the mortgage right under Exhibits Q, A and Q 1.
On 29 8 1920 Kumara sold the 81 acres 45 cents belonging to him and companyprised in the mortgages aforesaid to Achutaramaraju for Rs.
25 of 1927 was obtained fraudulently, and companytended that the present suit was barred by limitation.
Thereupon, they instituted on 7 8 1939 the present suit, O.S. No.
The plaintiffs appealed against this judgment to the District Court of East Godavari, which by its judgment dated 16th March 1945 affirmed the decree of the Subordinate Judge.
But before possession was taken, on 14 12 1936 Rangaraju and his sons instituted O.S. No.
14,000 in favour of one Merla Agastayya, Exhibit C, over the properties which he held in full ownership as companysharer, and also the mortgage right which he held over the properties belonging to Rangaraju and Kumara under the three mortgage deeds, Exhibits Q, A and Q 1.
He also pleaded that as he had purchased the properties in execution of the decree and obtained possession thereof, the suit which was one for a bare declaration that the decree was void and inexecutable was number maintainable.
Achutaramaraju, the mortgagor, and the members of his family were defendants I to 4 in that suit.
39 of 1939 on the file of the District Court, East Godavari for a declaration that the decree in 0.
17 of 1940 and O.S. No.
Kumara was impleaded as the 14th defendant and Rangaraju and his son as defendants 15 and 16.
The position then was that Achutaramaraju became the owner of 81 acres 45 cents out of the properties mortgaged under Exhibit A, and companytinued to be a simple mortgagee as regards the rest of them to the extent of half the amount due therein.
1826 of 1945 from Original Decree dated the 16th March, 1945, of the Court of District Judge, East Godavari at Rajahmundry in A.S. No.
The mortgagors, defendants 1 to 4, entered into a companypromise with the plaintiff, while defendants 14 to 16 remained expert.
79 of 1946.
268 of 1936 in the District Munsifs companyrt, Rajahmundry for a declaration that the decree in O.S. No.
Then there was an allegation that defendants I to 4 had themselves purchased the mortgaged properties towards discharge of the first defendants mortgage debts.
As a statement of fact, this was number accurate, because the purchase by Achutaramaraju was only of 81 acres 45 cents belonging to Kumara and the re maining properties companytinued to be held by Rangaraju, and Achutaramaraju was only a mortgagee thereof under Exhibit A. There were the further allegations that defendants 14 to 16 were impleaded as parties because they were in possession of the properties, and that they were the predecessors in title in respect of the properties which were mortgaged under Exhibits Q, A and Q 1.
In his written statement, the appellant denied that the decree in O.S. No.
Appeal by special leave from the Judgment and Decree dated the 16th day of February 1950 of the Madras High Court in Second Appeal No.
Satyanarayana Rao, J. who heard the appeal, companystrued the plaint as sufficiently raising this question and issue 2 b as companyering this companytention, and accordingly directed the District Judge to return a finding on the question as to whether the sale of the properties was warranted by the terms of the decree.
An objection was taken to the jurisdiction of the companyrt of the District Munsif to try this suit, and eventually, the plaint was returned to be presented to the proper companyrt.
25 of 1927 on its true companystruction directed a sale only of the mortgage rights which Achutaramaraju had over the A schedule properties, and that the sale of the properties themselves in execution of that decree was in excess of what the decree bad directed.,
Meanwhile, 163 acres 18 cents out of the properties mortgaged under Exhibit A, of which 81 acres 86 1/2 cents belonged to Rangaraju, were brought to sale on the 14th and 15th April 1936, and purchased by the decree holder himself.
1826 in the High Court, Madras.
By virtue of section 70 of the Transfer of Property Act, the sale under Exhibit G would enure for the benefit of the mortgagee, Merla Agastayya, being an accession to the interest of his mortgagor.
This application was rejected by the Subordinate Judge on 26 8 1935, and an appeal against this order to the High Court, Madras was also dismissed on 1 9 1938.
Then there was the general prayer for the sale of the properties.
11,000 as per Exhibit G, and thereby the two deeds, Exhibits Q and Q 1 became companypletely discharged and Exhibit A to the extent of the half share of Kumara.
25 of 1927 was obtained by suppressing service of summons, and was therefore void and companyld number affect their title to 136 acres 45 cents which were mortgaged under Exhibit A. The suit was transferred to the companyrt of the Subordinate Judge of Rajahmundry, and was numbered as O.S. No.
The sale was companyfirmed on 26 6 1936, and possession taken on 15 12 1936.
39 of 1939.
25 of 1927 had been obtained fraudulently, and that the decree holder was number entitled to execute the decree as against their pro perties.
On this finding, the second appeal came up for final disposal before Satyanarayana Rao, J. who agreed with the District Judge that the sale of the properties was number authorised by the decree, and was therefore void.
On 23 8 1934 the decree holder filed E.P. No.
99 of 1934 praying for the sale of the hypotheca including the properties mentioned in Exhibit A. Defendants 15 and 16 then intervened, and filed an objection to their being sold on the ground that the mortgage had been discharged in 1923, and that the exparte decree against them had been obtained fraudulently.
CIVIL APPELLATE, JURISDICTION Civil Appeal No.
and was therefore void, and that the plaintiffs were accordingly entitled to recover possession of those properties ignoring the sale.
2,000 over all the 218 acres belonging to them in favour of Achutaramaraju.
S. Krishnaswamy Aiyangar, K. R. Krishnaswamy, with him for respondents Nos.
The Judgment of the Court was delivered by VENKATARAMA AYYAR J. This is an appeal by special leave against the judgment of the Madras High Court in a second appeal which reversed the companycurrent judgments of the companyrts below, and granted a decree in favour of the respondents for partition and possession of 126 acres 33 cents out of a parcel of land of the extent of 503 acres 18 cents in the village of Kalavacherla and of 10 acres 12 cents out of a parcel of land of the extent of 40 acres 47 cents in the village of Nandarada, with mesne profits, past and future.
25 of 1927 on the file of the companyrt of the Subordinate Judge of Kakinada to recover the amount due thereon by sale of the hypotheca.
On 19 7 1909 both Rangaraju and Kumara executed a mortgage, Exhibit A, for Rs.
I to 4.
But he declined to entertain the objection that the suit was barred by section 47, Civil Procedure Code, on the ground that it had number been taken in the written statement, and was a new companytention preferred for the first time at the stage of second appeal.
183 of 1952.
All these lands measuring 543 acres 65 cents were purchased by five companysharers on 5 6 1888 under two sale deeds, Exhibits P and P 1.
On 4 6 1910 Kumara again created a mortgage over 81 acres 45 cents belonging to him, Exhibit Q 1 for Rs.
One of these shares of the extent of about 218 acres was, at the material dates, held in companymon by two brothers, Rangaraju and Kumara, the former owning 136 acres 45 cents and the latter 81 acres 45 cents.
November 4.
Somayya K. R. Chaudhury and Naunit Lal, with him for the appellant.
1,000 in favour of Nallapparaju, who with his undivided brother, Achutaramaraju, held a share in the two parcels of land aforesaid in Kalavacherla and Nandarada.
32 of 1943 arising out of the Decree dated the 31st October, 1942, of the Court of Sub Judge, Rajahmundry in Suit No.
On 19 8 1908 Kumara executed a simple mortgage, Exhibit Q, over 81 acres 45 cents belonging to him for Rs.
The District Judge of East Godavari to whom this issue was referred, held that the decree directed the sale of only the mortgage rights of Achutaramaraju under Exhibit A. and that the sale of the properties themselves was number in accordance with the decree.
There, for the first time the companytention was pressed that the decree in O.S. No.
On 31 1 1931 the suit was decreed in terms of the companypromise as against defendants I to 4 and ex parte as against defendants 14 to 16, and a final decree was passed on 6 11 1932.
S. No.
The plaintiffs then preferred Second Appeal No.
