Andhra Pradesh High Court - Amravati
Devaki Sreeramulu Gupta, vs Gorlapati Raghavendra Naidu on 12 October, 2023
HIGH COURT OF ANDHRA PRADESH AT AMARAVATI
MAIN CASE No. Second Appeal No.505 of 2023
PROCEEDING SHEET
Sl. Date ORDER OFFICE
No NOTE
1. 12.10.2023 BSB, J
S.A.No.505 of 2023
Heard learned counsel for the appellants/
plaintiffs.
Perused the record.
The suit in O.S.No.225 of 2009 is filed by
the plaintiffs for specific performance of the
contract or in the alternative to refund the order
with costs together with costs and the suit was
decreed by directing the refund of the advance
amount with the interest specified therein.
Having been aggrieved by the decree and
judgment, the plaintiffs preferred the appeal in
A.S.No.78 of 2017. The appellate Court
confirmed the decree and judgment of the trial
Court. Having been aggrieved by the same, the
second appeal is preferred by the plaintiff.
The learned counsel for the
appellants/plaintiffs submitted that the trial
Court refused to grant the decree for specific
performance solely on the ground that the part
of the suit schedule property was already
alienated by the brother and father of the
defendant in pursuance of the decree in their
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S.A.No.505 of 2023
favour in suit for partition filed by them against
the defendant and so the defendant has no right
to alienate the entire property covered by the
agreement of sale. He further submitted that
the trial Court failed to grant at least decree for
specific performance to the extent of the share
of the defendant, without examining the question
whether there can be a decree for specific
performance of part of the suit schedule
property. He further submitted that both Courts
committed error in ordering refund of the
amount instead of granting decree for specific
performance in view of the admission of the
registered agreement of sale by the
respondent/defendant. It is also submitted by
him that both Courts committed error in
considering the transactions subsequent to
agreement of sale of the property and that both
Courts failed to grant specific relief in spite of
finding that the respondent/defendant played
fraud at the time of execution of the agreement
of sale.
Accordingly, the appellants approached this
Court in second appeal by raising the following
substantial questions of law:
a. Whether the Court can grant relief of
specific performance of agreement of sale
against the part of total suit schedule
property to which the executor of
agreement of sale has absolute right over
it?
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S.A.No.505 of 2023
b. Whether the court below is justified in
granting the refund of advance amount
instead of granting specific performance of
agreement of sale in the light of admission
of registered agreement of sale by the
respondent?
c. Whether the court can upheld the validity
of subsequent sale transactions of the year
2007 without considering the previous
registered agreement of sale of the year
2006?
d. Whether the court below is justified in
granting the relief of refund of advance
amount paid by appellant from the
respondent, in spite of finding that the
respondent played fraud against the
appellant at the time of execution of
agreement of sale?
e. Whether the court properly appreciated the
evidence on record or not?
f. Whether the judgment and decree of
appellate court is perverse or not and
contrary to the evidence or not?
g. Whether the appellate court is justified in
dismissing the appeal and decreeing the
suit?
In view of the above substantial questions
of law which require hearing in this second
appeal, ADMIT.
Notice to respondent.
Learned counsel for the appellants is
permitted to take out personal service of notice
to respondent by RPAD and file proof thereof.
Post on 09.11.2023.
________________
B.S.BHANUMATHI, J
P.T.O.
BSB, J
S.A.No.505 of 2023
I.A.No.1 of 2023
This petition is filed to dispense with the
filing of Xerox copy of the judgment dated
28.08.2017 in O.S.No.225 of 2007 on the file of
Additional Senior Civil Judge, Kadapa in filing the
above second appeal.
For the reasons stated in the affidavit
filed in support of the petition, the petition is
allowed.
________________
B.S.BHANUMATHI, J
I.A.No.3 of 2023
This petition is filed to direct the
respondent not to alienate the part of suit
schedule property in an extent of Ac.2.36 out of
Ac.7.09 cents in D.No.1270 at Vallur village,
Kadapa district till pendency of this second
appeal.
For the reasons stated in the affidavit and
the averments noted above, interim order, as
prayed for, is granted till 09.11.2023.
________________
B.S.BHANUMATHI, J
PNV
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S.A.No.505 of 2023
