THE HON’BLE SRI JUSTICE A. GOPAL REDDY SECOND APPEAL No. 425 OF 2008 Date: 01-07-2011 Between Sabbisetti Radha Krishna Murthy …..Appellant And Sabbisetti Rattaiah (died) and four others …..Respondents THE HON’BLE SRI JUSTICE A. GOPAL REDDY SECOND APPEAL No. 425 OF 2008 ORDER: The unsuccessful defendant in the Courts below filed this second appeal against the judgment and decree dated 13-03-2008 passed by the learned Special Judge-cum-X Additional District Judge, Krishna at Machilipatnam in A.S No.165 of 2004 wherein the appeal preferred by him has been dismissed confirming the judgment and decree dated 30-08-2004 passed by the learned Junior Civil Judge, Bantumilli, Krishna District in suit O.S No. 6 of 2002. The respondent – plaintiff filed the above suit for recovery of an amount of Rs.19,726/- stating that the plaintiff and the defendant who are natural brothers jointly executed a letter on 28-11-1982 agreeing to pay Rs.8,000 to one T. Srinivasa Rao who filed O.S No.89 of 1987 on the file of the learned Junior Civil Judge, Bantumilli against them for recovery of an amount of Rs.13,380/ which was decreed. Aggrieved by the same, two separate appeals A.S Nos.154 and 160 of 1990 have been filed by the plaintiff and the defendant. On dismissal of both the appeals, the plaintiff preferred S.A No. 487 of 1998 before this Court and during the pendency of the appeal, he deposited an amount of Rs.2,403/- being the costs awarded by the Court and also Rs.6,000/- towards the decretal amount. It is stated that the said T. Srinivasa Rao who is the plaintiff in O.S No.89 of 1987 filed E.P.No.9 of 1998 against the plaintiff only though it is a joint and several decree against the plaintiff and the defenant and attached the property of the plaintiff for the decretal amount of Rs.26,421/- out of which the plaintiff’s liability is only half and the rest of the liability is of the defendant. The plaintiff has paid the entire amount and full satisfaction was recorded on 01-02-1999. The defendant has to contribute half of the amount which comes to Rs.13,391.75 ps and the above suit is filed to recover the said amount with interest at 12% per annum. The appellant – defendant admitted about the passing of the decree in O.S No. 89 of 1987 against the plaintiff and himself, but pleaded that one T. Krishna Prasada Rao filed another suit in O.S No.174 of 1987 against both of them for recovery of the amount. According to the defendant, it was agreed that the plaintiff has to pay entire amount with regard to the decretal amount in O.S No. 89 of 1987 and he has to pay the entire decretal amount in O.S No. 174 of 1987. It is further stated that the said T. Srinivasa Rao issued receipt dated 08- 06-1998 to the defendant that he will collect entire amount pertaining to the suit in O.S No. 89 of 1987 from the plaintiff. The said T. Srinivasa Rao and T. Krishna Prasada Rao are son and father. The son of the defendant filed a suit in O.S No. 193 of 1999 on the file of the Junior Civil Judge, Bantumill against the plaintiff and the defendant which was dismissed on merits. It is stated that in the said suit, the plaintiff deposed that he has to discharge the debt in O.S No. 89 of 1987 but not in O.S No. 174 of 1987 and that the defendant has already discharged the debt in O.S No. 174 of 1987. Thus, he is not liable to pay any amount to the plaintiff and the suit is liable to be dismissed. On the strength of the pleadings, necessary issues were framed by the trial Court and after considering the entire evidence and the material available on record, it was held that there is no evidence to prove that there is an agreement between the plaintiff and the defendant that the plaintiff has to pay the decretal amount in O.S No. 89 of 1987 and the defendant has to pay the decretal amount in O.S No. 174 of 1987 and that the defendant has failed to adduce any evidence to prove such agreement. Therefore, the plaintiff is entitled for recovery of the suit amount. The same has been confirmed by the lower appellate Court. The findings of fact arrived at by both the Courts below do not suffer from any illegality or there is any perversity in appreciation of the evidence so as to give rise to a substantial question of law. Further, it is represented that during the pendency of the appeal, the entire decretal amount is also recovered by the respondent – plaintiff by filing an execution petition. Therefore, there is no warrant to admit the second appeal. It is accordingly dismissed. A. GOPAL REDDY, J 01-07-2010 ks