D RANGAPPA Vs. G MUDIAPPA

JUDGEMENT

(1.) THIS appeal by the plaintiff is directed against the judgment and decree passed by the Court of the Civil Judge (Sr. Dn.) Madhugiri in R. A. No. 51/2002, dated 11-04-2003, allowing the appeal and setting aside the judgment and decree passed by the Court of the Civil Judge (Jr. Dn.)Madhugiri, in O. S. No. 10/1998 dated 31-10-2002 and consequently, dismissing the suit of the plaintiff.

(2.) THE essential facts of the case leading upto this appeal with reference to the rank of the parties before the Trial Court are as follows : the plaintiff filed the suit, O. S. No. 10/1998, seeking for delivery of possession of the suit schedule property from the defendants to him and for award of costs averring that the first defendant was the owner of the suit schedule property and he mortgaged the same in favour of the State Bank of Mysore, Madhugiri, for raising loan. The suit O. S. No. 9/78, was filed by the said Bank for recovery of the loan amount. The said suit was decreed for recovery of the decretal amount and thereafter, the said decree was sued out in Execution petition No. 94/1989 and the suit schedule property was brought to sale and an auction was held on 17-01-1991. The plaintiff participated in the said sale and he was the highest bidder and the sale of the suit schedule property was confirmed in his favour on 01-09-1993. The defendants filed Miscellaneous Appeal No. 65/1993 challenging the confirmation of sale and the said appeal was dismissed on 08-08-1994. It is further averred that the sale certificate was also obtained by the plaintiff on 17-02-1995 and in order to take delivery of possession of the suit schedule property, the plaintiff approached and requested the defendants to hand over possession of the suit schedule property, but, they refused to do so and wherefore, the suit.

(3.) THE suit was resisted by the defendants. Defendants 1 to 5 filed the written statement averring that the various allegations made in para 2 of the plaint are all correct, but, the proceedings in Execution petition No. 94/1989 are bad at its inception and the allegations in para 3 of the plaint are all false. It is further averred that the cause of action stated in para 4 of the plaint was not correct and the plaintiff started deliberate proceedings in Misc. No. 73/1995, which was dismissed on 29-10-1997 and the suit was barred by time and not maintainable and sought for dismissal of the suit by awarding costs.