K. Mangamma and Others vs M. Venkateswarlu and Others

N.D. Patnaik, J.—The 6th respondent in this appeal filed a suit O.S.No. 234/71 for recovery of certain sum of money against the first respondent and his brother since deceased and obtained the decree in the year 1980. In execution of the said decree the property belonging to the judgment-debtor was attached. There were some claim petitions and all of them were dismissed. Ultimately the property was sold in the Court auction on 20-9-1984. The 7th respondent who is the husband of the 6th respondent is the auction purchaser. Then the judgment-debtor filed a petition to set aside the sale which was dismissed on 7-7-87 and C.M.A. in that was also dismissed on 25-4-88. It was stated that the Executing Court ordered the sale certificate to be issued on.2-4-85. While the matter was pending thus the Hindu Succession Act, 1956 was amended and Section 29-A was inserted whereby the daughters were also given rights in the co-parcenary property. Now, the daughters have filed the suit O.S.No. 278/88 for partition challenging the alienation on various grounds including the ground that the debt is A vyavaharika-debt. The learned Additional Subordinate Judge, Tirupathi granted ex-parte temporary injunction. But, after the respondents filed the counters, the said ex parte interim injunction was vacated. As against that, this appeal is filed.

The learned counsel for the appellants had argued that Section 29-A of the Hindu Succession Act is retrospective in nature and that the daughters can challenge the Avyavaharika transactions which are taken prior to that. He had also contended that it is open to the daughters to question the right of the auction purchaser. I feel these questions pertain to the maintainability of the suit itself. This appeal is filed against the order passed by the learned Additional Subordinate Judge, refusing to grant temporary injunction. It is not proper to express any opinion on merits of the case.

I confine myself to the limited questions whether the plaintiffs have a prima fade case and whether the balance of convenience is in their favour. The learned Additional Subordinate Judge had elaborately discussed the contentions at length and found that the allegations that respondents 1 to 5 were addicted to vices is not at all acceptable because at that time some of them were young children and could not be addicted to vices. Apart from that there is no material to prima facie indicate that any of the respondents were addicted to vices. The plaintiffs have failed to make out a prima facie case, having heard both sides and gone through the order of the learned Subordinate Judge, I agree with his finding.

The next question is whether the balance of convenience is in favour of the plaintiffs. The auction purchaser, that is, the 7th respondent had purchased the property in the Court sale in the year 1984 and had deposited the amount in Court. The action of the 7th respondent, that is, the auction purchaser in pursuing the remedies open to him under law in taking possession of the property which he purchased in the Court sale cannot be considered to be wrongful act. If the plaintiffs are successful in the suit, they can recover their shares of the property. But, it is not necessary to prevent the auction purchaser from taking possession of the entire property, till the disposal of the matter. Therefore the balance of convenience is also not in favour of the plaintiffs-appellants. The learned Subordinate Judge is therefore right in dismissing the petition. The appeal therefore fails and is dismissed. No costs.