THE HONOURABLE SRI JUSTICE B.SESHASAYANA REDDY C.M.S.A.No.63 of 2009 JUDGMENT: This civil miscellaneous second appeal is directed against the judgment dated 21.8.2009 in A.S.No. 138 of 2007 on the file of Principal District Judge, Rajahmundry whereby and whereunder the learned Principal District Judge dismissed the appeal confirming the order dated 1.8.2007 passed in E.A.No.41 of 2004 in E.P.No.134 of 2003 in O.S.No.83 of 1998 on the file of the Senior Civil Judge,Ramachandrapuram. 2. The background of facts in a nutshell leading to file this civil miscellaneous second appeal by Parvathini Bala Satish are that Rimmalapudi Brahmaji Rao Chowdary filed O.S.No.83 of 1998 on the file of the Senior Civil Judge,Ramachandrapuram against Subba Rao and obtained a decree. Pending the suit, he also moved an application seeking for attachment of properties owned by Subba Rao. Attachment came to be effected and subsequently suit ended in decree. Subba Rao died on 16.9.1998 and he is survived by wife, two sons and one daughter. Decree Holder filed E.P. against the legal representatives of Subba Rao for sale of the attached properties. The appellant herein filed E.A.No.41 of 2004 under Order 21 Rule 58 read with Section 151 CPC and under Order 38 Rule 8 CPC to raise the attachment. He pleaded that he purchased the property under an agreement of sale dated 4.1.1997 for Rs.3,50,000/- and paid Rs.2,62,500/- on the date of sale and subsequently he paid Rs.50,000/- on 25.4.1997 and Rs.37,500/- on 15.9.1997. He filed O.S.No.37 of 1999 for specific performance of an agreement of sale. On coming to know that primary agricultural Cooperative Society, Pulagurtha village advanced loan to Subba Rao on the security of the property purchased by him, he discharged the debt of Rs.16,800/- to the society by way of D.D. and obtained a receipt. He filed petition before the executing court to raise the attachment in respect of Item No.2 of the E.P. schedule property. The decree holder filed counter resisting the application. The decree holder disputed the agreement of sale pressed into service by the appellant-petitioner. The appellant-petitioner examined himself as PW.1 and got marked five documents as Exs.A.1 to A.5. The decree holder got himself examined as RW.1. The learned Senior Civil Judge, on considering the evidence on record and on hearing counsel appearing for the parties, came to the conclusion that the agreement of sale pressed into service by the petitioner has not been properly proved and thereby proceeded to dismiss the application by order dated 1.8.2007. The appellant filed an appeal being A.S.No.138 of 2007 on the file of the Principal District Judge, Rajahmundry assailing the order dated 1.8.2007 passed in E.A. No. 41 of 2004. The learned District Judge formulated the following points for consideration: i. Whether the petitioner placed sufficient evidence to uphold the agreement of sale? ii. Whether the lower court considered the matter properly and arrived at correct conclusion and whether its order and decree are sustainable or not? 3. The learned Principal District Judge on reappraisal of the evidence brought on record and on hearing the counsel appearing for the parties, came to the conclusion that the appellant- claimant failed to prove the agreement of sale pressed into service and thereby proceeded to dismiss the appeal by judgment dated 21.8.2009. The said judgment is assailed in this civil miscellaneous second appeal. 4. Heard the learned counsel appearing for the appellant. 5. The learned counsel appearing for the appellant submits that the appellant purchased Item No.2 of the E.P. Schedule property under an agreement of sale from Subba Rao for a valid consideration and subsequently he filed a suit being O.S.No.37 of 1999 and obtained decree and such is the situation, the finding of the lower court as confirmed by the appellate court that the agreement of sale is not properly proved cannot be sustained. 6. Indisputably, the decree holder is not a party to the suit O.S.No.37 of 1999 said to have been filed by the appellant against the legal representative of Subba Rao, who have been arrayed as respondents 2 to 5, seeking for specific performance of an agreement of sale . Therefore, any decree passed in the said suit does not bind the decree holder. The appellant pressed into service the agreement of sale but did not choose to examine any of the attestor to the agreement of sale to prove the same. It is the contention of the appellant that his mother gave the money out of Sridhana amount for purchasing property from Subba Rao. The appellant did not choose to examine his mother to substantiate the same. The trial court as well as lower appellate court considered the material on record in the right perspective and proceeded to hold that the agreement of sale has not been properly proved by the appellant- petitioner and that the said agreement of sale does not bind the decree holder. There is no substantial question of law involved in this appeal warranting admission. Accordingly, this appeal fails and is dismissed at admission stage. No costs. ________________________ B.SESHASAYANA REDDY,J 19.11.2009 Stp