HON’BLE SRI JUSTICE A. GOPAL REDDY S.A. No.593 OF 2010 Dated:23-07-2010 Between: Nimmakayala Pushpalatha & Others …Appellants AND Nimmakayala Satya Sai & Another …Respondents This Court made the following: HON’BLE SRI JUSTICE A. GOPAL REDDY S.A. No.593 OF 2010 JUDGMENT: This Second Appeal is filed challenging the judgment of VI Additional District Judge (Fast Track Court), East Godavari at Rajahmundry made in A.S.No.10 of 2009, dated 24.2.2010, whereby the learned Additional District Judge dismissed the appeal confirming the judgment and decree passed by the Senior Civil Judge, Ramachandrapuram, dated 29.12.2008 in dismissing E.A.No.164 of 2007 in E.P.No.59 of 2004 in O.S.No.64 of 2003. The second respondent herein filed O.S.No.64 of 2003 on the file of Senior Civil Judge, Ramachandrapuram and obtained a money decree against the first respondent herein, who is the father of the appellants herein. Pursuant to the decree, second respondent filed E.P.No.59 of 2004 for realization of the decretal amount by way of sale of E.P. schedule property which was attached before judgment in the suit. Earlier, first respondent herein filed I.P.No.18 of 2001 showing the E.P. schedule property as schedule-8 and the said I.P. was dismissed for default. Later, when the second respondent filed the present suit, first respondent filed a petition for restoration of I.P. and the said petition was also dismissed. Meanwhile, the appellants herein filed a suit in O.S.No.296 of 2004 for partition and separate possession claiming 3/4th share in the suit schedule property, in which an ex parte preliminary decree was passed, wherein, the first respondent remained ex parte. For passing a final decree, I.A.No.163 of 2006 was filed in O.S.No.296 of 2004. After obtaining the preliminary decree in O.S.No.296 of 2004, the appellants laid their claim in the E.P. schedule property by filing E.A.No.164 of 2007. The executing Court in its order observed that the E.P. schedule property was purchased by first respondent under Ex.R.1 registered sale deed, dated 30.7.1997 and constructed R.C.C. building which is in exclusive possession and enjoyment of first respondent. To substantiate that the E.P. schedule property was purchased with the joint family funds, there was no pleading, but whereas, it was contended by the appellants that the E.P. schedule property was purchased by first respondent with the money given by his parents-in-law. Neither in the petition nor in the evidence in-chief of P.W.1, the wife of first respondent stated that first respondent purchased the property with the money given by her parents, which fact was stated only during the course of her cross-examination. Even if it is accepted that the first respondent is having only 1/4th share in the E.P. schedule property, there is an obligation on the part of the appellants to discharge the debt contracted by their father-first respondent. Further it is not the case of the appellants that the loan borrowed by their father-first respondent from second respondent is Avyavaharika debt, and therefore, the above claim set up by the appellants is only to defraud the creditors and accordingly, dismissed the E.A. On appeal being filed, the lower appellate Court, on re-appreciation of the entire evidence, dismissed the appeal. Admittedly, it is not the plea of the appellants that the E.P. schedule property is co-parcenary property. P.W.1, the mother and the guardian of the appellants filed suit in O.S.No.296 of 2004 for partition of the E.P. schedule property namely, R.C.C. building into four equal shares and for allotment of three such shares to the appellants, in which, after obtaining a preliminary decree, the appellants filed I.A.No.163 of 2006 for passing final decree. The second respondent filed an application in I.A.No.660 of 2007 in the said suit to implead him as a party to the final decree, and the same was dismissed on contest. As seen from the record, the first respondent-father of the appellants purchased the E.P. schedule property under a registered sale deed, dated 30.7.1997 and constructed R.C.C. building, which was attached before judgment as per the orders, dated 3.9.2004 in I.A.No.499 of 2003 in O.S.No.64 of 2003. Further, P.W.1, the wife of first respondent admitted in the cross-examination that her husband-first respondent shown the E.P. schedule property in the I.P. schedule filed by him and further she admitted that the first respondent has not possessed any properties previously. The pleadings and evidence of P.W.1 would show that since they are jointly enjoying the schedule property, the appellants are entitled to 3/4th share therein. The lower appellate Court rightly held that mere joint enjoyment of the property is not sufficient to claim in the self- acquired property of the first respondent while he is alive, and that when the debt incurred by their father-first respondent is not Avyavaharika debt, the appellants are under pious obligation to discharge the said debt. The concurrent findings recorded by both the Courts below on appreciation of evidence in proper perspective do not suffer from any perversity to give rise to a question of law to admit the second appeal. The Second Appeal fails and the same is accordingly dismissed. No order as to costs. _______________ A. GOPAL REDDY, J. JULY 23, 2010 Tsr.