JUDGMENT :

The present Appeal arises against the judgment and decree dated 02.05.2008 in A.S.No.3 of 2006 on the file of the Court of the Principal District Judge, Kurnool by reversing the judgment and decree dated 30.11.2005 passed in EA No.330 of 2005 in E.P.No.132 of 2004 on the file of the Court of the Additional Senior Civil Judge, Kurnool.

2. For the sake of convenience, the parties will hereinafter be referred to as arrayed in E.A.

3. The facts of the case are that the 1st respondent herein obtained a preliminary decree against the respondents No.2 and 3 in O.S No.218 of 2002 in the Court of Principal Senior Civil Judge, Kurnool for recovery of about Rs.3 lakhs under a simple mortgage deed and filed E.P.No.132 of 2004 to realize it by way of sale of a house. The said E.P. was dismissed stating that one Parvathamma purchased the said property on 6.6.1994 under a registered agreement of sale for Rs.2,25,000/- from the 2nd respondent. As the vendor did not execute the sale deed, she instituted OS No.41 of 1999 before the Court of Principal Senior Civil Judge, Kurnool for specific performance of the said agreement of sale and obtained a decree thereon on 11.4.2000 and sale deed also from the Court on 25.2.2002 and took possession of the property also. As she ever since in continuous possession therefore, she is the absolute owner thereof, sold it on 23.10.2022 under a registered sale deed to both the petitioners/appellants, who have been ever since in possession thereof and they were mutated their names in the municipal records also. It is further stated that the mortgage between the respondents No.1 and 2 was subsequent to the agreement of sale of Parvathmma. So mortgage does not create any right in favour of the 1st respondent is collusive and created to defeat right of Parvathamma.

4. Counter affidavit is filed by the 1st respondent stated that if Parvathamma had really purchased the property, she would not have waited for 2 ½ years without taking any action to take sale deed; possession of property with third party, cannot be a bar to take a sale deed by Parvathamma, she had taken five years to institute the suit. So her document and court proceedings between her and the 2nd respondent are collusive. It is further stated that the petitioners are not bonafide purchasers. Mere agreement of sale does not extinguish right of 1st respondent acquired under mortgage deed. An agreement of sale cannot complete the sale. The application for the relief sought for is not maintainable and it lies only by filing separate suit. The 1st respondent being bonafide mortgage has right over the property. Therefore, prayed to dismiss the petition.

5. The respondents No.2 and 3 remained ex parte before the trial Court and did not file any counter.

6. Basing on the above pleadings, the trial Court framed the following point:

1. Whether the petitioners have got right or title over the property?

7. During enquiry, the petitioners/appellants examined the 1st petitioner/1st appellant as PW.1 and marked Exs.A1 to A.10. Contesting respondent examined himself as RW.1 and marked Ex.R1.

8. After considering the oral and documentary evidence available on record, the trial Court has allowed the E.A.No.330 of 2005 in E.P.no.132 of 2004 in O.S No.218 of 2002 with costs declaring that the respondents No.2 and 3 therein have no right to mortgage the property to the respondent No.1. E.P. is therefore dismissed vie order and decree dated 30.11.2005. Aggrieved by the same, the respondent No.1 has preferred A.S No.3 of 2006 before the first appellate authority i.e., Principal District Judge, Kurnool and the same was allowed vide judgment dated 02.05.2008 setting aside the order and decree dated 30.11.2005 in E.A No.330 of 2005 in E.P.No.132 of 2004 in O.S No.218 of 2002 on the file of the Additional Senior Civil Judge, Kurnool. Consequently E.A No.330 of 2005 in E.P.No.132 of 2004 in O.S No.218 of 2002 is dismissed. Challenging the same, the respondents No.1 and 2 in A.S