THE HON’BLE SRI JUSTICE C.V. NAGARJUNA REDDY SECOND APPEAL No.469 of 2014 Dated: 20.09.2014 Between:
Basanth Patel .. Appellant and Smt. Kamala Bai and others .. Respondents Counsel for the appellant: Mr. N. Praveen Reddy Counsel for the Respondents: Mr. Venkat Raghu Ramulu The Court made the following:
JUDGMENT:
This second appeal arises out of judgment and decree dated 10.03.2014 in A.S.No.6 of 2012 on the file of the learned Additional District Judge, Vikarabad, Ranga Reddy District, whereby she has confirmed the judgment and decree dated 02.03.2012 in O.S.No.133 of 2008 on the file of the learned Junior Civil Judge, Tandur.
Respondent No.1 filed the above-mentioned suit for recovery of Rs.40,000/- lent to the appellant under mortgage. In the said suit, a preliminary decree was passed on 02.03.2012 for a sum of Rs.40,000/- with interest at the rate of 6% per annum from the date of filing of suit till its realization and fixing four months as redemption period from the date of passing of the decree. Assailing the said judgment and decree, the appellant filed A.S.No.6 of 2012, which was dismissed by the lower appellate court by its judgment dated 10.03.2014. Feeling aggrieved by these two judgments, the defendant filed this appeal.
The only substantial question of law that is raised by the appellant in this second appeal is that all the legal heirs of the original mortgagee were not impleaded in the suit as mandated by Order XXXIV Rule 1 of C.P.C.
When this case came up for admission earlier, this Court has felt that in order to put a quietus, it is appropriate that the other legal heirs of the deceased mortgagee are also impleaded. Hence, the case was adjourned to enable the appellant to file an implead application. Accordingly, the appellant has filed S.A.M.P.No.1520 of 2014 for impleading non-applicants 2 to 8 therein as respondents 2 to 8 in this second appeal. By a separate order passed today, this Court has allowed the said application. With the impleadment of respondents 2 to 8 in the second appeal, the defect from which the suit has suffered has got cured.
Mr. Venkat Raghu Ramulu, learned counsel appearing for respondent No.1, has stated that he has instructions to appear for respondents 2 to 8 also.
Mr. N. Praveen Reddy, learned counsel for the appellant, while admitting that no further question of law arises in this case, has however submitted that in the counter-affidavit filed in the implead application, respondents 2 to 8 have raised several aspects relating to possession.
In my opinion, these aspects are wholly irrelevant for the purpose of determination of the second appeal. The only issue that arises in this second appeal is whether the preliminary decree passed by the lower court for recovery of money based on a mortgage deed is correct or not. As the findings of the courts below have not been questioned on merits, the second appeal deserves to be dismissed. The issue relating to possession of the property needs to be settled between the parties separately.
For the above-mentioned reasons, while holding that the judgment and decree of the lower court binds the appellant as well as all the respondents including respondents 2 to 8, the second appeal is dismissed, leaving the parties free to agitate the issue of possession of mortgaged property in appropriate proceedings.
As a sequel to dismissal of the second appeal, S.A.M.P.No.1301 of 2014 shall stand disposed of as infructuous.
C.V.NAGARJUNA REDDY, J 20th September, 2014 IBL