IMPORTANT POINT
The court affirmed that disputes regarding execution of decrees must be resolved by the executing court, and allegations of fraud must be substantiated with evidence.

JUDGMENT :

V. Gopala Krishna Rao, J.

1. This Appeal, under Section 96 of the Code of Civil Procedure [for short 'the C.P.C.'], is filed by the Appellant/plaintiff challenging the Decree and Judgment, dated 21.02.2004, in O.S. No.22 of 1997 passed by the learned Senior Civil Judge, Gudur [for short 'the trial Court']. The Respondents herein are the defendants in the said Suit.

2. The Appellant/Plaintiff filed the above said suit praying the Court to set aside the Court sale dated 12.03.1996 conducted by the I Additional District Judge, Nellore in E.P.No.8 of 1988 in O.S.No.104 of 1975 on the ground of fraud played by the defendants and for consequential permanent injunction restraining the 5th defendant from interfering with the peaceful possession and enjoyment of the plaintiff to the plaint schedule property and for costs.

3. Both the parties in the Appeal will be referred to as they are arrayed before the trial Court.

4. The brief averments of the plaint, in O.S. No.22 of 1997, are as under:

The first defendant herein filed a suit in O.S.No.104 of 1975 on the file of the I Additional District Judge, Nellore against the defendants 2 and 3 for recovery of a sum of Rs.43,542.38 ps. on a mortgage of the plaint schedule property and obtained a decree. Subsequently the third defendant sold the same property to the plaintiff under a registered sale deed dated 14.04.1982 for a consideration of Rs.85,000/- and she also agreed to deposit the debt in O.S.No.104 of 1975. Relying upon the representation of the third defendant, the plaintiff developed the building, as it was originally in an extent of 29 ankanas into 48 ankanas. The third defendant has conceived an idea to deceive the plaintiff, she did not raise proper defense in the suit in O.S.No.104 of 1975 for compound interest with quarterly rests instead of for simple interest at 10.5% p.a. and she did not even defend the petition to amend the decree filed on 25.02.1985 claiming for quarterly compounding interest and she colluded with the bank officials. After the development made by the plaintiff, the value of the property was increased to a worth of more than Rs.10,00,000/-. The suit property was not tested before it was actually brought for sale nor retested. The decree holder in collusion with the J.Dr. and in collusion with the intended auction purchaser valued at Rs.1,00,000/- and the Court Amin valued at Rs.2,50,000/- in collusion with the bank officials though it is actually worth is at Rs.10,00,000/-. By the time of auction on 12.03.1996 by undervaluing the bank officials played a fraud on the bank itself and in collusion with the intended purchaser enabling him to knock down the property for a sum of Rs.2,75,000/- as such the entire Court sale is vitiated by fraud. The plaintiff herein also filed claim petition in E.A.No.7 of 1996 and it was dismissed on the ground that there was no attachment and the remedy is by way of a separate suit and the same was also confirmed by the High Court.

5. The first defendant filed a written statement denying the contents of the plaint and further contended as under: -

After passing the final decree, the plaintiff purchased the mortgage property from the judgment debtor on 14.04.1982, even if the said sale deed is true that he steps into the shoes of J.Dr. and he cannot claim any statutory title under the said sale deed, as such he happens to be party in the said suit. All questions arising between the parties to the suit in which the decree was passed or their representatives and relating to the execution, discharge or satisfaction of the decree shall be determined by the Court executing the decree and not by a separate suit as laid down in Section 47 C.P.C. so the suit is not maintainable and liable to be dismissed.

6. The third defendant filed a written statement admitting the plaint schedule property was mortgaged to the first defendant bank and subsequently it was sold to the plaintiff under a sale deed dated 14.04.1982 for a sum of Rs.85,00