A isl

IN THE HIGH COURT OF ANDHRA PRADESH AT AMAR

MONDAY ,THE FIFTH DAY OF SEPTEMBER TWO THOUSAND AND TWENTY TWO

PRESENT

THE HONOURABLE MS JUSTICE B S BHANUMATHI

AS No. 138 OF 2017

Appeal filed under Section 96 of CPC aggrieved by the decree and judgerhent in O.S.No.329 of 2012 dated 31.10.2016 passed by the Principal Senior Civil Judge, Kurnool.

Between:

■■

• 1. P Bala Maddilety [died by his LRs]
• 2. Nagamani, Wife of Late P. Bala* Maddilety, Hindu, Aged about 45 years. Housewife, R/o. H.No.29/178-1^3, SBI Colony, Nandyal, Kurnool District? Railway Station Road, Nandyal Town, Kurnool District.
• 3. Manoj Kumar, Son of Late P.' Bala Maddilety, Hindu, Aged about 27 years Employee, LIC, R/o. House .Np.29/178-J3, SBI Colony, Nandyal, Kurnool District, Railway Station Roadi 'Naridyal Town, Kurnool District.

...Appellants/Defendants

" AND

K Thimmaiah, Son of K. Maddilety,-Hindu, A^ed about 55 years, R/o. Bethamcherla Village and'Mahdal, Kurnool District.

...Respondent/Plaintiff

Counsel for the Appellant: SRI VEDULA SRINIVAS

Counsel for the Respondent: SRI K. RATHANGA PANI REDDY

The Court made the following: JUDGMENT

THE HON'BLE Ms. JUSTICE B.S.BHANUMATHI

A.S.No.138 of 2017

JUDGMENT;

<•. •

This appeal, under Section 96 CPC, is preferred against the judgment and decree, dated 31.10.2016, passed in O.S.No.329 of 2012 on the file of the Court of Senior Civil Judge, Kurnool.

2. The case of the plaintiff is that the defendant borrowed ah amount of Rs.2,00,000/- on 15.05.2009 and another sum of Rs.2,00,000/- on 20.12.2009 from the plaintiff for his family necessities and on the said dates, he executed two promissory notes in favour of the plaintiff agreeing to repay the same with interest at 24% per annum on demand to the plaintiff. Though the plaintiff demanded repayment of the debt under the promissory notes, the defendant finally refused to pay the amount. The dated 20.03.2012 to the The defendant issued reply with all false allegations. Hence, the plaintiff is constrained to file the present suit for recovery of a sum of Rs.6,60,000/- against the defendants 2 & 3 with subsequent interest at 24%. plaintiff got issued a legal notice, defendant.

3. time denying the material averments and putting the plaintiff to strict proof of the same. After receipt of the legal notice, the 1^ The 1®^ defendant filed his written statement during his life

BSB, J

A.S.No.138 of 2017

interest in the presence of S.Bala Venkata ^wamy and the defendant's wife, Nagamani, in the house of the plaintiff at Bethamcherla and the plaintiff returned the said two pro-notes. defendant paid entire debt under the said promissory notes with

4. and defendants 2 & 3 were added as his legal representatives. After appearance, defendants 2 3 filed their written statement • denying the plaint averments and contending that the suit never signed or put his thumb impression on the promissory notes. The attestors and scribe are close associates of the plaintiff. These defendant. The suit is liable to be dismissed. defendants did not succeed to the estate of the deceased 1®^ After filing of his written statement, the 1®^ defendant died promissory notes are fabricated for wrongful gain and no consideration is passed under them. The deceased 1®' defendant

5. Basing on the.above pleadings, initially, the following issues were settled for trial:

• (i) Whether the plaintiff is entitled for recovery of the suit amount of Rs.6,60,000/- under two promissory notes together with subsequent interest and costs as prayed for?
• (ii) Whether the suit promissory notes are already discharged by the defendant in the presence of Bala Venkata Swamy and Nagamani as contended by him in his written statement?
• (iii) Whether, the suit promissory notes are true, valid and binding on the defendant?
• (iv) To what relief?

BSB, J A.S.No.138 Of 2017

Consequent to the filing of the written statement by defendants 2 & 3, the following additional issue was also framed:

Whether the estate of the deceased defendant No.l in the hands of D2 and D3 is liable for the suit claim?

During the course of trial, the plaintiff got himself examined as PWl and also examined PW2 and got marked exhibits Al to A3. On the . Other hand, the 3"* defendant got himself examined as DWl. But, no documentary evidence was adduced.

6. On merits, the trial Court, decreed the suit with costs for a sum of Rs.6,60,000/- together with subsequent interest at the rate of 24% per annum from the date of the suit to the date of decree and at 6% per annum therefrom till the date of reali2ation on the principal amount of Rs.4,00,000/- against the estate of the deceased defendant in the hands of defendants 2 & 3.

Aggrieved thereby, the defendants 2 & 3 preferred this appeal. It is contended on behalf of the defendants ² & ³ that the trial Court erroneously decreed the suit on improper appreciation of evidence and the defendants 2 & 3 are not liable for the alleged debts of the defendant; and that the plaintiff did not amend the prayer after the legal representatives of the deceased 1®* defendant were brought on record. 7.

BSB, J A.S.No.138 of 2017

8. The main ground of argument advanced in appear is that there is no finding given by the triai Court as to what estate is left by the deceased in the hands of the defendants 2 & 3, though there is a specific plea tgken by them in the written statement denying receipt pf any estate by them from the deceased V' defendant.

9. The trial Court decreed the suit directing the decretal amount to be realised from the estate of the deceased 1" defendant in the hands gf defendants ² » 3. Of course, there is no finding as to what is the estate left by him. Thgugh no issue was framed on this aspect, the defendants 2 & 3 did not take any steps to get a specific issue framed in this regard as to whether the deceased has left any estate and continued with the trial. But, an additional issue was framed as to whether the estate of the deceased/defendant No.l in the hands of defendants 2 & 3 is liable for the suit claim and also ■ the same is also answered in favour of the plaintiff.

10. on the ground that the^said were not repaid Though the defendant admitted under exhibit A6, dated 31.03.2012, statement, he defended the suit in his reply and also in the written an amount of Rs.?,00,000/- on 15.05.200 and Rs.2,00,000/- on 20.12.2009 under two different promissory notes, but the same by the defendant. Insofar a? the suit claim is concerned, the contention of the • plaintiff is that the 1®^ defendant borrowed

6SB, J . A.S.No.138 of 2017

amounts were paid to the plaintiff and those two promissory notes were taken back after tearing them and those were enclosed to the written statement. They filed separate written statements. Son was examined as DWl. On the other hand, the plaintiff filed two separate promissory notes marked as exhibits Al and A2 for the same amount and with the • give rise to presumptive of being supported by the consideration. his evidence stated that the 'scribe' and attestor of suit promissory note are close associates of the plaintiff and further stated that the on the promissory notes. This part of evidence is contrary to the documents under exhibits Al and A2. As is already noted, there Is . no separate scribe and those documents are autograph of the After filing of the written statement, the 1®' establishing the suit claim, but the defendants failed to disprove the case of the plaintiff nor could they establish their defence. DWl in ■ defendant died. His wife and son were added as defendants 2 & 3. But, he failed to file two promissory notes annexed to the written Statement of 1®' defendant, in evidence on behalf of the defendants. deceased 1®^ defendant had never signed or put thumb impression Therefore, the plaintiff could discharge his initial burden of PW2, who is the sole attestor of exhibits Al and A2. In fact, the deceased. DWl has not even referred to the repayments said to said promissory notes are autographs of the 1®' defendant. They same dates. His (PWl) evidence is supported by the evidence of

BSB, J A.S.No.138 of 2017

$\mathcal{L}_{\mathcal{A}}$

have been made by the 1^st defendant as stated in his written statement. Except denying the suit transaction, nothing was deposed by DW1 in his evidence in chief examination. No other witness has been examined nor was any other documentary evidence placed by the defendants 2 & 3.

11. Thus, the trial Court has rightly decreed the suit based on the suit promissory notes under exhibits A1 and A2. Mere plea taken in the written statement is not proof of the case of the defendants. Since the question of any estate would arise in the proceedings under execution, as the trial Court decreed the suit only against the estate left by the 1^st defendant in the hands of defendants 2 & 3, here need not be any detailed enquiry in the trial Court as to what estate left by the deceased. If at all, there is no the 1^st defendant with the defendants 2 & 3, the laintiff cannof get the decree executed at all against the $230$ % defendants 2 & 3 who are the appellants herein. As such, there is no merit in the appeal.

12. In the result, the appeal is dismissed.

There shall be no order as to costs.

Miscellaneous petitions pending, if any, shall stand closed.

//TRUE COPY//

Sd/- V DIWAKAR DEPUTY REGISTRAR

To,

• The Principal Senior Civil Judge, Kurnool.<br>The Section Officer, V.R Section, High Court of Andhra Pradesh at Amaravati.<br>One CC to Sri Vedula Srinivas, Advocate [OPUC]<br>Two CCs to Sri K. Rathanga Pani Reddy, Advocate [OUT]
• 4
• Two CD copies. $Trt$

to Chic hourdary

DATED:05/09/2022

JUDGMENT

AS.No.138 of 2017

$76pies$ $Kcc$ $2017$

DISMISSING THE A.S

IN THE HIGH COURT OF ANDHRA PRADESH AT AMA

MONDAY, THE FIFTH DAY OF SEPTEMBER TWO THOUSAND AND TWENTY TWO

PRESENT

THE HONOURABLE MS JUSTICE B S BHANUMATHI

AS No. 138 OF 2017

Between:

1. P Bala Maddilety [Died by his LRs]

• 2. Nagamani, Wife of Late P. Bala Maddilety, Hindu, Aged about 45 years, Housewife, R/o. H.No.29/178-13, SBI Colony, Nandyal, Kurnool District, Railway Station Road, Nandyal Town, Kurnool District.
• Manoj Kumar, Son of Late P. Bala Maddilety, Hindu, Aged about 27 years,<br>Employee, LIC, Rio. House No.29/178-J3, SBI Colony, Nandyal, Kurnool<br>District, Railway Station Road, Nandyal Town, Kumool District.

...Appellants/Defendants

AND

$\mathcal{L} = \mathcal{L}$

K Thimmaiah, Son of K. Maddilety, Hindu, Aged about 55 years, R/o. Bethamcherla Village and Mandal, Kurnool District.

...Respondent/Plaintiff Appeal filed under Section 96 of CPC aggrieved by the decree and judgement 2012 dated 31.10.2016 passed by the Principal Senior Civil Judge, urnool

This appeal coming on for hearing and upon perusing the grounds of appeal, the judgment and decree of the Lower Court and the material papers in the appeal and upon hearing the arguments of Sri Vedula Srinivas, Advocate for the appellant, and of Sri K. Rathanaga Pani Reddy, Advocate for the Respondent

This Court doth order and decree as follows:

• That the appeal be and hereby is dismissed. $\mathbf{1}$
• 2. That there be no order as to costs in this A.S.

//TRUE COPY//

Sd/- V DIWAKAR DEPUTY REGISTRAR SECTION OFFICER

To,

1. The Principal Senior Civil Judge, Kurnool.

2. Two CD copies. $Trt$

K. zh. chowdody

HIGH COURT

$\mathcal{M}{\mathcal{A}}\subset\mathcal{M}{\mathcal{A}}$

DATED:05/09/2022

DECREE

AS.No.138 of 2017

3 Copics $\frac{1}{\text{kce}}$ <br>2017

DISMISSING THE A.S