Andhra Pradesh High Court – Amravati
Vemula Srinivasa Rao vs Uppala Srinivasa Rao on 16 July, 2025
APHC010638902016
IN THE HIGH COURT OF ANDHRA PRADESH
AT AMARAVATI [3397]
(Special Original Jurisdiction)
WEDNESDAY,THE SIXTEENTH DAY OF JULY
TWO THOUSAND AND TWENTY FIVE
PRESENT
THE HONOURABLE SRI JUSTICE VENUTHURUMALLI GOPALA
KRISHNA RAO
SECOND APPEAL NO: 970/2016
Between:
1. VEMULA SRINIVASA RAO, S/O. SUBBA RAO, HINDU, AGED ABOUT
37 YEARS, PRIVATE EMPLOYEE, R/O. CHALLAPALLI VILLAGE &
MANDAL, AVANIGADDA J.C.J.C.
...APPELLANT
AND
1. UPPALA SRINIVASA RAO, S/O BHAGAVANTHA RAO, HINDU, 40
YEARS, LORRY DRIVER, R/O VENKATAPURAM, MOPIDEVI
MANDAL, AVANIGADDA J.C.J.C. (D.HR.)
2. VEMULA LAKSHMI, W/O KONDALU, HINDU, 44 YEARS, HOUSE
WIFE, R/O CHALLAPALLI VILLAGE & MANDAL AVANIGADDA,
P.J.C.J.C (J.DR)
...RESPONDENT(S):
Appeal under section ___________ against orders aggrieved by the
Judgment and Decree dated 06-08-2016 passed in A.S. No. 37 of 2014 In
E.A. 97/2011 in E.P. 4/2010 in O.S. No. 18/2007,on the file of Special
Sessions Judge-Cum-X Addl. District & Sessions Judge: Krishna,
Machilipatnam confirming the Judgment and Decree, dated 05-08-2014 in
E.A. No. 97/2011 in E.P. No. 4/2010 in O.S. No. 18/2007, on the file of the
Senior Civil Judge At Avanigadda,
IA NO: 1 OF 2016(SAMP 2514 OF 2016
Petition under Section 151 CPC praying that in the circumstances stated
in the affidavit filed in support of the petition, the High Court may be pleased to
stay all further proceedings including the sale of Item No. 2 of Plaint Schedule
in E.A.NO. 97 of 2011 in E.P.NO. 4/2010 in O.S.No. 18/2007 on the file of the
Senior Civil Judge at Avanigadda and pass
IA NO: 4 OF 2016(SAMP 42116 OF 2016
Petition under Section 151 CPC praying that in the circumstances stated
in the affidavit filed in support of the petition, the High Court may be pleased
IA NO: 1 OF 2017(SAMP 429 OF 2017
Petition under Section 151 CPC praying that in the circumstances stated
in the affidavit filed in support of the petition, the High Court may be pleased
permit the petitioners to take out substitute service on Respondent No.2 in SA
No.970/2016 in Krishna District Edition, Avanigadda Division of Sakshi Telugu
Daily News Paper
IA NO: 2 OF 2017(SAMP 6344 OF 2017
Petition under Section 151 CPC praying that in the circumstances stated
in the affidavit filed in support of the petition, the High Court may be pleased
IA NO: 1 OF 2023
Petition under Section 151 CPC praying that in the circumstances stated
in the affidavit filed in support of the petition, the High Court may be pleased to
vacate the interim order dated 27.01.2017 passed in S.A. No. 970/2016 by
this Hon'ble Court and pass
Counsel for the Appellant:
1. C.PANINI SOMAYAJI
Counsel for the Respondent(S):
1.
The Court made the following:
Judgment:
This second appeal under Section 100 of the Code of Civil Procedure
("C.P.C." for short) is filed aggrieved against the Judgment and decree, dated
06.08.2016 in A.S.No.37 of 2014 in E.A.No.97 of 2011 in E.P.No.4 of 2010 in
O.S.No.18 of 2007, on the file of the Special Sessions Judge-cum-X
Additional District & Sessions Judge, Krishna at Machilipatnam ("First
Appellate Court" for short), confirming the order and decreetal order, dated
05.08.2014 in E.A.No.97 of 2011 in E.P.No.4 of 2010 in O.S.No.18 of 2007,
on the file of Senior Civil Judge at Avanigadda ("Trial Court" for short).
2. The appellant herein is the petitioner/claimant and the respondents
herein are the respondents/decree holder and judgment debtor in E.A.No.97
of 2011 in E.P.No.4 of 2010 in O.S.No.18 of 2007 before the Trial Court.
3. The petitioner initiated action in E.A.No.97 of 2011 in E.P.No.4 of
2010 in O.S.No.18 of 2007 with a prayer to eliminate the schedule property
from the sale in E.P.No.4 of 2010 in O.S.No.18 of 2007 before the Trial Court.
4. The learned Trial Judge allowed the petition in part. Felt aggrieved of
the same, the petitioner in the above said petition filed A.S.No.37 of 2014
before the First Appellate Court. The learned First Appellate Judge dismissed
the appeal by confirming the order and decreetal order passed by the learned
Trial Judge. Aggrieved thereby, the petitioner in the petition in E.A.No.97 of
2011 approached this Court by way of second appeal.
5. For the sake of convenience, both parties in the appeal will be
referred to as they are arrayed in the original suit.
6. The case of the petitioner, in brief, as set out in the plaint averments
in E.A.No.97 of 2011 in E.P.No.4 of 2010 in O.S.No.18 of 2007, is as follows:
The petition schedule property is the absolute property of the petitioner,
who purchased the same for a valuable consideration of Rs.70,000/- under a
registered sale deed, dated 21.07.2007 from Vemula Subba Rao and 9 others
and he is in possession and enjoyment of the same since then. The name of
the petitioner is also incorporated in revenue records, as pattadar and
enjoydar and he was issued pattadar passbook in his favour by revenue
authorities. One Vemula Bullemma, W/o Manikayala Rao of Challapalli was
original owner of the petition schedule property which was purchased by her
under a registered sale deed, dated 14.10.1957 and since then she enjoyed
the same with absolute rights till she died intestate in the year 1983. After the
death of said Bullemma, her legal heirs took possession of the schedule
property and they have been enjoying jointly with absolute rights. As the
schedule property is small extent of land of the legal heirs of said Bullemma,
they sold the same to the petitioner for a valuable consideration and the
respondent/Judgment Debtor is not at all absolute owner of the schedule
property. On enquiry by the petitioner, it is revealed that the schedule property
is going to be sold in Court auction by the Executing Court in execution of
decree alleged to have been obtained by the respondent Nos.1 and 2. The
alleged attachment is only paper transaction. As the 2nd respondent has no
right over the schedule property or part thereof for sale in execution of decree,
the petition schedule property or part thereof is to be excluded from the
execution proceedings brought by 1st respondent.
7. The 2nd respondent remained ex-parte.
The 1st respondent filed counter denying the material allegations. The
averments in the petition, in brief, are as follows:
The 1st respondent filed the suit basing on the pronote, dated
22.06.2005 against the 2nd respondent and the same was decreed on
30.09.2009 on merits. The 2nd respondent is neither relative nor friend of the
1st respondent. The 1st respondent filed I.A.No.123 of 2007 in O.S.No.18 of
2007 for attachment of item Nos.1 and 2 of the schedule properties and the
attachment before judgment orders were issued by the Trial Court directing
the 2nd respondent to furnish third party security within two days after receipt
of the notice in respect of the petition schedule land and the attachment
orders issued on 07.03.2007 and served on 09.03.2007 and the attachment is
effected on 12.03.2007 and the attachment before judgment is made absolute
on 24.06.2008 and no appeal or revision preferred by the 2nd respondent. The
2nd respondent executed a registered sale deed along with others on
21.03.2007 after the attachment of the property effecting on 12.03.2007 and
the said sale deed is not valid as it was executed after knowing the
attachment orders by the 2nd respondent. When there is a proper attachment
in March 2007, the present petition is filed in June 2011 when the property
brought to the sale. The sale held by the Executing Court and is coming for
confirmation only. In order to get further time, the 2nd respondent instigated to
file the present petition by the petitioner and the petition is liable to be
dismissed with costs.
8. On the basis of above pleadings, the learned Trial Judge, framed the
following points for trial:
(1) Whether the petitioner is entitled for eliminating the schedule
property from the sale in E.P.No.4 of 2010 in O.S.No.18 of
2007 on the file the Executing Court?
(2) To what relief?
9. During the course of trial in the Trial Court, on behalf of the petitioner,
P.W.1 to P.W.6 were examined and Exs.P.1 to P.5 were marked. On behalf of
the respondents, R.W.1 was examined and Ex.R.1 to Ex.R.3 were marked.
10. The learned Trial Judge after conclusion of trial, on hearing the
arguments of both sides and on consideration of oral and documentary
evidence on record, allowed the petition in part without costs. Felt aggrieved
thereby, the petitioner filed the appeal suit in A.S.No.37 of 2014 before the
First Appellate Court wherein the following points came up for consideration:
1) Whether the 2nd respondent has no exclusive share and her
children are entitled to their share?
2) Whether the 1st respondent can proceed against the house site
which is exclusive property of 2nd respondent?
3) Whether finding of the trial Court allowing 1/3rd share of
Yedukondalu husband of 2nd respondent in the petition
schedule property to be brought for sale, requires any
interference?
4) To what relief?
11. The learned First Appellate Judge after hearing the arguments,
answered the points, as above, against the appellant and dismissed the
appeal confirming the order and decreetal orders passed by the learned trial
Judge. Felt aggrieved of the same, the petitioner in the above petition, filed
the present second appeal before this Court.
12. On hearing both sides counsel at the time of admission of the
appeal, on 27.01.2017, the erstwhile High Court of Andhra Pradesh at
Hyderabad framed the following substantial questions of law:
(1) Whether on the death of the husband, the wife can act as a Karta
of Hindu Joint Family when she cannot be treated as coparcener
along with her husband and children?
(2) Whether she is entitled to allow the sale of minors' interest in the
joint family property to discharge the debt borrowed by mother?
(3) Whether mother in the capacity of Manager can alienate minors'
interest in favour of third parties when the appellants being Class-I
heirs have right of pre-emption to purchase Item No.1 of the petition
schedule property as a preferential claim? and
(4) Whether the mother can allow to sell away the minors' interest in
the joint family property without permission of District Court as per
the provisions of the Guardians and Wards Act, 1890 read with
Section 8 of the Hindu Minority and Guardianship Act, 1956?
13. Heard Sri C. Panni Somayaji, learned counsel for the appellant and
heard Sri Penumaka Venkata Rao, learned counsel for the respondents.
14. In a second appeal under Section 100 of CPC the High Court
cannot substantiate its own opinion for that of First Appellate Court unless the
Court finds that the conclusions drawn by both the Courts are erroneous
being, (i) contrary to the mandatory provisions of the applicable law or (ii)
contrary to the law as pronounced by the Apex Court or (iii) based on
inadmissible or no evidence.
15. The jurisdiction of the High Court in second appeal under Section
100 of CPC is strictly confined to the case involving substantial question of law
and while deciding the second appeal under Section 100 of CPC, it is not
permissible for the High Court to re-appreciate the evidence on record and
interfere with the findings recorded by both the Courts below and if the First
Appellate Court has exercises in its discretion in a judicial manner, its decision
cannot be recorded as suffering from an error either of law or of procedure
requiring interference in a second appeal.
16. The undisputed facts are Item No.2 of the petition schedule property
was attached before judgment vide orders in I.A.No.123 of 2007 in the suit
proceedings in O.S.No.180 of 2007 on 07.03.2007, attachment was served on
09.03.2007 on the Judgment Debtor, attachment was effected on 12.03.2007
and the attachment is made absolute on 24.06.2008. It is also undisputed that
the appellant purchased the schedule property on 21.03.2007 subsequent to
the attachment effected and it is also an admitted fact that the sale was
conducted by the Executing Court on 15.06.2011 and the appellant filed the
application under Order 21 Rule 58 and Sections 47 and 151 of the CPC on
30.05.2011. It is also admitted by the appellant that his father, brother and
sister are vendor Nos.1 to 3 and the family members of the Judgment Debtor
i.e., wife and children of the Judgment Debtor are also vendors in the said
sale deed. The appellant examined his father as P.W.6. P.W.6 also admitted
in his evidence that his deceased brother i.e., husband of Judgment Debtor
died and after the death of his parents, his deceased brother inherited 1/3rd
share in Item No.2 of the schedule property and subsequently, his brother
died and legal representatives of his deceased brother are vendor Nos.5 to 8.
17. The appellant relied on the evidence of P.W.1 to P.W.6. P.W.1 is
no other than the appellant herein, P.W.2 and P.W.3 are the attestors to the
sale deed under Ex.P.2 and P.W.4 is scribe of Ex.P.2 sale deed. The
execution of the alleged sale deed under original of Ex.P.2 is not at all
disputed by the respondents. P.W.5 is adjacent owner of the schedule
property, P.W.6 is father of appellant, who is one of the vendors in item No.2
of the schedule property in the alleged Ex.P.2 sale deed and the vendors in
Ex.P.2 are closely related to the appellant. As per the evidence of P.W.6, the
first vendor of sale deed, his brother got 1/3rd share in item No.2 of the
schedule property. The Judgment Debtor is no other than the wife of the
paternal uncle of the appellant and brother of P.W.1. The petition schedule
property was attached in the suit itself prior to the property purchased by the
appellant and the said attachment order was passed in the suit proceedings
on 07.03.2007 and the same was served on the Judgment Debtor on
09.03.2007 and attachment was effected on 12.03.2007 and while the
attachment was in force, the Judgment Debtor along with her dependent
children and other family members of the appellant having knowledge about
attachment in the suit itself, executed a registered sale deed under original of
Ex.P.2, dated 21.03.2007 and the appellant obtained the same having
knowledge about the earlier attachment. Therefore, the attachment effected is
much prior to the sale deed obtained by the appellant, as such, the
attachment prevail over Ex.P.2 sale deed. The Judgment Debtor is having
very much knowledge about the attachment in the suit proceedings and on
knowing the attachment effected, the appellant herein obtained a sale deed
from his kith and kin including the Judgment Debtor and her children to defeat
the rights of the decree-holder.
18. The above circumstances as explained clearly reveals that on
knowing the attachment effected, the appellant and Judgment Debtor entered
into sale deed and the Judgment Debtor along with her dependent children
executed a registered sale deed in respect of item No.2 of the petition
schedule property. Therefore, the attachment prevail over the sale.
19. The learned counsel for the appellant would contend that in 1/3rd
share of Yedukondalu, the children of Yedukondalu are also having share and
without considering the same, both the Courts below came to a conclusion
that 1/3rd share in item No.2 of the petition schedule property has to be
eliminated from the sale. Nothing was pleaded by appellant in his pleadings in
the original petition before Executing Court that children of judgment debtor
are having share in 1/3rd share of Yedukondalu in item No.2 of the petition
schedule property. As seen from the judgment of the First Appellate Court, the
learned First Appellate Judge by giving cogent reasons held that on
22.06.2005 by the date of borrowing amount by the 2 nd respondent/judgment
debtor, all children are unmarried and all are living together, for family
necessities only, the 2nd respondent/ judgment debtor borrowed money from
the 1st respondent. The 2nd respondent/judgment debtor is remained set ex-
parte in the execution proceedings and also in the E.A.No.97 of 2011
proceedings. In order to prove the same, the judgment debtor did not enter
into witness box to show that her children are also having share in 1/3rd in item
No.2 of the petition schedule property. The 2nd respondent/judgment debtor is
the best person to speak about the alleged rights of her children as contended
by the appellant before the First Appellate Court.
20. The law is well settled by the Hon'ble Apex Court in a case of
Vidhyadhar vs. Manikrao and others1 where the Hon'ble Apex Court held
that;
"Where the party to the suit does not appear into witness box and states
his own case on oral and does not offer himself to the cross examination
by the other side, a presumption would arose that the case set up by him
is not correct".
1
AIR 1999 SC 1441
In the present case on hand, the judgment debtor was served
attachment order much prior to the sale, on knowing the consequences, the
judgment debtor along with her children alienated their 1/3rd share in item
No.2 of the petition schedule property and it is undisputed by both the parties
that husband of judgment debtor by name Yedukondalu is having 1/3rd share
in item No.2 of the petition schedule property. As rightly held by the learned
First Appellate Judge that for the purpose of family necessities only, the
judgment debtor borrowed money and the children of judgment debtor are
also having pious obligation to discharge the said debt. As stated supra, the
attachment prevail over the sale under Ex.P.2, as such, the sale deed under
Ex.P.2 to the extent of 1/3rd share of the judgment debtor in item No.2 of the
petition schedule property is void. By giving cogent reasons, both the Courts
below came to a conclusion that the sale held to the extent of 1/3rd share of
the husband of judgment debtor in item No.2 of the petition schedule property
is void. Both the Courts below came to a concurrent finding and held that
1/3rd share of Yedukondalu in item No.2 of the petition schedule property has
to be eliminated to sale. The aforesaid findings, in my considered view, remain
unimpeachable from the evidence led by the parties. It cannot be said that the
same are in any manner perverse or based on incorrect reading, application
or interpretation of the statue.
21. Having regard to the reasons assigned, this Court is satisfied that
the concurrent findings of fact recorded by both the Courts below on all the
issues/points against the petitioner and in favour of the 1st respondent do not
brook interference and that both the Courts below are justified in allowing the
petition in part in favour of the petitioner. The findings of fact recorded by both
the Courts below were based on proper appreciation of evidence and the
material on record and there was neither illegality nor irregularity in those
findings and therefore, the findings do not require to be upset. Therefore, I do
not find any illegality in the concurrent findings arrived by both the Courts
below.
22. In the result, the second appeal is dismissed. Considering the facts
and circumstances, there shall be no order as to costs.
As a sequel, miscellaneous petitions, if any, pending in the Appeal shall
stand closed.
__________________________
V. GOPALA KRISHNA RAO, J.
DT.16.07.2025.
PGR
//TRUE COPY//
VENUTHURUMALLI GOPALA KRISHNA RAO,J
To,
1. UPPALA SRINIVASA RAO, S/O BHAGAVANTHA RAO, HINDU, 40
YEARS, LORRY DRIVER, R/O VENKATAPURAM, MOPIDEVI
MANDAL, AVANIGADDA J.C.J.C. (D.HR.)
2. VEMULA LAKSHMI, W/O KONDALU, HINDU, 44 YEARS, HOUSE
WIFE, R/O CHALLAPALLI VILLAGE & MANDAL AVANIGADDA,
P.J.C.J.C (J.DR)
3. Two CD Copies
HIGH COURT
VGKRJ
DATED:16/07/2025
ORDER
SA 970/2016
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