SHIVANNA Vs. SMT JAYAMMA

JUDGEMENT

(1.) THIS is defendants" appeal against the judgment and decree of the Trail Court which has decreed the suit of the plaintiff for recovery of money. For the purpose of convenience, parties are referred as they are referred to in the original suit.

(2.) THE plaintiff-Indian Bank had filed the suit for recovery of Rs.3,51,921/- with interest at the rate of 17.85% plus 2% penal interest per annum with half yearly rests from the date of the suit till the date of realization and they also sought for preliminary decree in respect of the mortgaged suit property to recover the decretal amount if the amount is not paid.

(3.) DEFENDANT 3-subsequent mortgagee filed a separate written statement defending the plaint allegations. They contended they have a first charge over all the properties in respect of which, the plaintiff claims that defendant 2 has mortgaged it in their favour. DEFENDANT 3 has lent money to defendant 2 as all enquires made by defendant 3 did not disclose any notice of any encumbrance on the suit properties offered as security by way of mortgage. Therefore, 3rd defendant accepted the mortgage of the above properties as bona fide creditor. The 3rd defendant sought for dismissal of the suit.