E.A No. 240 of 1998 · Andhra Pradesh High Court

that the first petitioner purchased the schedule property from respondent Nos.7 to 11 under a registered sale deed dated 11-04-1990 subject to the payment of Rs.45,000/-to registered mortgage holder-Durga Nageswara Rao which was subsequently transferred in favour of Tallam Subbarayudu. As the first petitioner has to discharge the mortgage, he paid a sum of Rs.10,000/- and Rs.15,000/- to the transferee mortgagee in partial discharge of the debt and they were not endorsed on the back the mortgage deed dated 24-12-1984. Subsequently, the said T.Subbarayudu filed a suit O.S.52 of 1993 and obtained a decree. A preliminary decree was passed on 20-07-1994 and final decree was also passed on 13-09-1996. The above payments were not given credit. Therefore, the decrees are liable to be set aside and the E.P is to be dismissed. The respondent Nos.1 to 6 have filed a counter-affidavit contending that the payments pleaded by the first petitioner are not true the application under Section 47 CPC is not maintainable.

Preliminary and Final Decrees have already been passed and the purchase of the mortgage property was subject to the mortgage only. There were proper calculation of the interest and therefore the petition is liable to be dismissed. On behalf of the petitioners PWs.1 to 4 were examined and marked EXs.A-1 to A-7. On behalf of the respondents, RW.1 was examined and no documents are marked. After considering the evidence on record, the learned Senior Civil Judge dismissed the application. Aggrieved by the said order, the present revision is filed. Now the point that arises for consideration is:- Whether the order of the lower court in dismissing the application under Section 47 CPC is valid or nor? POINT:- Evidently, the first petitioner herein is a party to the suit O.S.No.51 of 1993. In the said suit the particulars of the claim were specifically mentioned. The first petitioner was also a party in the preliminary and final decree proceedings.

The present plea with regard to payment of Rs.10,000/- and Rs.15,000/- towards the mortgage debt were not pleaded. Evidently, the above payments are even prior to the filing of the suit. There is nothing on record to show that there was an agreement between the parties that the said payments will be given credit or that there was a fraud played on the petitioner. There is also no endorsement of the payments on the mortgage debt about the payment. Evidently, the present plea raised by the revision petitioners are open earlier and has not chosen to raise the same at the stage of preliminary decree or the final decree and therefore on the basis of the principles of constructive res judicata, the petitioners’ claim about the payment cannot be considered. At no point of time the payments were sought to be recorded. It is not a case where decree is illegal or decree passed by the court is suffering from want of jurisdiction.