L. NARASIMHA REDDY, J.

( 1 ) IN this appeal, the plaintiff in O. S. No. 59/82 challenged the Judgment and decree of the trial Court in so far as it has denied the relief of preliminary decree against the plaint schedule property on the strength of mortgage.

( 2 ) THE plaint was filed with the following averments :- the appellants are the wholesale merchants in textiles having their place of business at Vijayawada. They supply the goods to merchants in various parts of the state. The 1st respondent has been running a textile shop under the name and style of munaga Brothers at Cuddapah. He purchased goods from the appellants from time to time on credit basis and there remained certain outstanding dues payable to the appellants. The amounts due to the individual appellants from the 1st respondent were calculated during 1978-79 on various dates in the presence of the 1st defendant and he certified the correctness of the same. When the appellants insisted on the 1st respondent to pay the amounts, he came to Vijayawada on 10-6-1979 and created a mortgage in favour of the appellants covering the amounts due to them. He deposited the title deed dated 6-2-1963 in respect of the immovable property and also executed a letter in favour of the appellants, evidencing the factum of deposit of title deeds and also specifying the amounts covered by the mortgage.

( 3 ) IT is the case of the appellants that subsequent to the mortgage created on 10-6-1979, the 1st respondent paid certain amounts to the appellants. However, since substantial amounts remained unpaid, they filed the suit for redemption of the mortgage and for a preliminary decree under order XXXIV Rule 1 of CPC for the amounts specified in the plaint.

( 4 ) THE 1st respondent filed a written statement, which is rather evasive in nature. The averment in the plaint that the 1st respondent purchased the goods on credit basis from the appellants is not disputed. However, the correctness of the amounts specified in the plaint is disputed. As regards the mortgage, the 1st respondent flatly denied his very going to Vijayawada on 10-6-79 and execution of the letter dated 10-6-1979. He has also denied the delivery of the documents of title to the appellants. According to him, there was no need for him to go to Vijayawada on 10-6-1979.

( 5 ) IT was the further case of the 1st respondent that on account of his bad financial position, he addressed letters dated 1-4-1979 to all he creditors including the appellants requesting them to agree for a scheme formulated by him to share the amounts from proceeds of his assets proportionate to the outstanding amounts. According to him, one of the creditors has filed I. P. No. 2/80 to adjudge him (1st respondent and his partners) as insolvents. Another creditor filed O. S. No. 65/79 and obtained a decree against the 1st respondent. When the said creditor was taking steps to bring the house of the 1st respondent to sale, the appellants, on coming to know the same, came to cuddapah and took the letter creating a semblance of mortgage only to prevent the sale. According to the 1st respondent, the letter evidencing the mortgage was written by him to the dictation of the appellants in july, 1979, but was ante-dated to 10-6-1979, only with a view to avoid the sale in execution. There was neither a mortgage nor deposit of title deeds. Certain objections were also raised as to the joinder of causes of action of various appellants in one suit, non- joinder of partners of Munaga Brothers, limitation, etc.

( 6 ) SINCE the 1st respondent has been adjudicated as insolvent, an Official receiver was appointed by the Court in those proceedings. As the property, which is under mortgage, was one of the listed items of assets of the 1st respondent, the Official receiver was added as 2nd defendant through orders in I. A. No. 469/85. He figures as respondent No. 2. He filed written statement stating that he is only a formal party and is not aware of the allegations in the pl

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