HON’BLE SRI JUSTICE A. GOPAL REDDY AND HON'BLE SRI JUSTICE B.CHANDRA KUMAR C.M.A. No.603 OF 2008 DATED:12-10-2009 BETWEEN: Gurram Vijay Kumar …Appellant AND Malla Ramachandra Prasad & Others. …Respondents This Court made the following: HON’BLE SRI JUSTICE A. GOPAL REDDY AND HON'BLE SRI JUSTICE B.CHANDRA KUMAR C.M.A. No.603 OF 2008 JUDGMENT: (Per Hon’ble Sri Justice A.Gopal Reddy) Plaintiff filed this appeal assailing the order passed by VII Additional District Judge (Fast Track Court) at Vijayawada whereby and whereunder the learned Additional District Judge dismissed the application filed by the plaintiff in I.A.No.4 of 2008 in O.S.No.424 of 2007 for temporary injunction not to further proceed in the auction sale and delivery proceedings etc., and other proceedings in respect of the plaint schedule properties by the respondents-defendants pending disposal of the suit. For the sake of convenience, the parties herein will be referred to as per their array in the suit. The appellant-plaintiff instituted the above suit for declaration of his title and for injunction in respect of the suit schedule properties comprising items 1 to 3 alleging that pursuant to the decree obtained by him in O.S.No.9 of 2002 on the file of Senior Civil Judge, Chodavaram for specific performance of agreement of sale, dated 26.7.1996, a sale deed was executed in his favour by the defendants 6 to 8 and another on 26.10.2002 in respect of the suit schedule property and possession thereof was also delivered in execution of the decree in E.P.No.34 of 2002, and that he also obtained a rectification of the sale deed dated 4.11.2004 in respect of the plaint schedule properties from defendants 6 to 8 and one Metta Kondamma and since then he has been in possession and enjoyment of the same. However, the defendants 1 to 8 having colluded with each other are marking hectic efforts to dispossess him from the suit schedule properties. It is alleged that 1st defendant in collusion with defendants 6 to 8 obtained a decree in O.S.No.583 of 1999 on the file of Senior Civil Judge, Chodavaram and by filing E.P.No.36 of 2002 brought item No.1 of suit schedule property for Court auction for recovery of amount due and subsequently, 1st defendant in collusion with 2nd defendant obtained a sale certificate in respect of item No.1 of suit schedule properties for a lesser price in the auction and the same is not valid and binding on the plaintiff. Similarly, 3rd defendant in collusion with defendants 6 to 8 and Metta Kondamma obtained an ex parte decree in O.S.No.20 of 2000 on the file of Principal Junior Civil Judge, Anakapalli and for execution thereof brought item No.2 of suit schedule properties for Court auction in the execution proceedings. Subsequently, 3rd defendant in collusion with defendants 6, 7 and Metta Kondamma himself got the said property in the auction for a lesser price and therefore, the sale certificate issued in his favour is not binding on the plaintiff. Further 4th defendant obtained a preliminary decree in O.S.No.23 of 2002 on the file of Senior Civil Judge, Chodavaram and in collusion with defendants 6 to 8 obtained a final decree in I.A.No.112 of 2004 on 14.10.2004 in respect of item No.3 of suit schedule properties belonging to plaintiff and obtained a sale certificate and therefore, the said mortgage decree is not binding on the plaintiff. Therefore, the plaintiff prayed to restrain the defendants from interfering with his possession over the suit schedule properties. Contesting the impugned I.A., the respondents 1,2 and 4 filed a counter affidavit contending that the suit filed in O.S.No.583 of 1999 basing on mortgage was decreed on 21.1.2004 and on filing E.P.No.36 of 2002 on the file of Senior Civil Judge, Chodavaram on behalf of 1st defendant, the suit schedule properties were attached for sale. At that stage, the plaintiff filed a claim petition in E.A.No.142 of 2002 claiming rights over the suit schedule properties and the same was dismissed on merits. Questioning the correctness of dismissal of claim petition, the plaintiff filed A.S.No.616 of 2003 and the same was also dismissed on 13.9.2007 by this Court on merits. On dismissal of the appeal, sale certificate was issued to the 1st defendant on 25.3.2005 confirming the sale and later delivery of possession was effected on 4.3.2008 regarding the E.P. schedule properties i.e. item No.1 of present suit schedule properties and the same was recorded in E.P.36 of 2002 on 2.4.2008 and the same was terminated. Similarly, defendants 3 and 5 obtained decrees in O.S.Nos.20 of 2000 and 9 of 2000 from the competent courts and in due execution of the decrees filed E.P.No.121 of 2001 in O.S.No.20 of 2000 and brought item No.2 of suit schedule properties for sale and after conducting the sale on 14.2.2002, sale certificate was also issued; and that item No.1 of suit schedule properties was brought for sale and sale certificate was also issued in E.P.No.8 of 2006 and since then, they are in possession of the said properties. We have heard the learned counsel for the appellant as well as learned counsel for respondents 1 and 2. It is not disputed that with regard to item No.3 of suit schedule properties, the suit filed on the basis of mortgage was decreed earlier to the collusive decree obtained by the appellant- plaintiff on 21.1.2004 in O.S.No.583 of 1999. Whereas, the decree passed in O.S.No.9 of 2002 was on 22.4.2002 in which E.P.No.34 of 2002 was filed for execution of sale deed. The suit schedule properties are the subject-matter of mortgage and the appellant-plaintiff filed a claim petition being E.A.No.142 of 2002 in E.P.No.36 of 2002 which was filed for execution of mortgage decree passed in O.S.No.583 of 1999 and the said claim petition was decided against the appellant-plaintiff which has also been confirmed by this Court in A.S.No.616 of 2003 holding that the appellant-plaintiff has colluded with defendants 6 to 8 in obtaining the decree in O.S.No.9 of 2002 to defraud the creditors whose decree is earlier to the decree obtained by the appellant-plaintiff. The learned counsel for the appellant-plaintiff has not disputed the factum of the earlier decrees passed in respect of the suit schedule properties. Item Nos.1 and 2 of suit schedule properties were attached in E.P.Nos.121 of 2001 and 8 of 2006 in execution of the decrees obtained in O.S.Nos.20 and 9 of 2002. The very fact of appellant-plaintiff filing the suit in O.S.No.9 of 2002 for specific performance of agreement of sale of the year 1986 in which, the defendants 6 to 8 have chosen to remain ex parte facilitating the appellant to obtain an ex parte decree goes to show that the claim of the appellant-plaintiff lacks bona fide and it is only to defraud the creditors who obtained the above decrees. Further in the plaint averments, the appellant nowhere stated about the factum of dismissal of his claim petition in E.A.No.142 of 2002 in E.P.No.36 of 2002, which shows that he has not come to the court with clean hands. Once the claim petition has been dismissed, the remedy of the appellant-plaintiff, if any, over the suit schedule properties is to make a claim under Section 47 of C.P.C. but not by way of a separate suit. Thus the appellant-plaintiff failed to make out any prima facie case, which is sine qua non for grant of injunction. Under those circumstances, we do not see any illegality or infirmity in the impugned order passed by the lower Court. The Civil Miscellaneous Appeal is accordingly dismissed. It is made clear that the lower Court has to dispose of the suit on its own merits. No order as to costs. _______________ A. GOPAL REDDY, J. __________________ B.CHANDRA KUMAR, J. OCTOBER 12, 2009 Tsr.