D GOVINDAPPA Vs. THIMMANNA

JUDGEMENT

(1.) THE case of the plaintiffs is that they and defendant No.5 are brothers and they are the sons of one Thimmaiah @ Amase Thimmaiah who died about 15 years prior to the suit. The plaintiffs and 5th defendant were in possession and enjoyment of the suit schedule properties as co -parceners having inherited the same after death of their father. Since the defendant No.5 was not cooperating with the plaintiffs he was arrayed as a defendant. That the plaintiffs father Amase Thimmaiah (hereinafter called as Mortgagor) had mortgaged the suit properties in favour of the first defendant Bank, as security for a loan amount of Rs.3,000/ - in the year 1958 -59. Certain amounts were repaid to the bank.

(2.) IT is the case of the plaintiff that huge amounts have been re -paid inclusive of interest. That in respect of the non -payment of dues the first defendant filed a dispute before the second defendant Bank and obtained an award. Thereafter the first defendant filed an execution petition against the plaintiff in E.P. No.9/67 -68 before the second defendant, Registrar of Cooperative Societies. The suit schedule mortgaged property was put up for public auction on 21.8.1968. It was sold to one K Doddaiah, father of defendant No.4 for Rs.3,850/ -. The sale was confirmed on 24.11.1969. A sale certificate was issued on 9.3.1970. No notice has been issued to the mortgagor either in the dispute or in the execution. That such an award and execution is improper since the entire loan amount was repaid. That the first respondent had an obligation in law to intimate the plaintiff with regard to the dues and the proposed sale. That the alleged arbitration proceedings, execution, confirmation as sale are illegal, concocted and behind the back of the plaintiff/mortgagor. Since the possession was being disturbed by the alleged purchaser, the plaintiff has filed O.S. No.461/93 for injunction. It is in that suit, the defendants produced all the relevant material. It is only then that the plaintiff came to know about the details of the execution, sale, etc., Hence the suit was dismissed with a liberty to the plaintiff to file a fresh suit and hence the instant suit was filed seeking for a decree that the plaintiffs and defendant No.5 are the lawful owners in possession of the suit schedule property and to declare the sale deed dated 9.3.1970 executed in favour of the father of the 4th defendant as null and void.

(3.) ON service of summons the defendant entered appearance and denied the suit averments. Defendant No.1 remained absent. He was placed exparte. Defendants 2 and 3, the Assistant Registrar of Cooperative Societies and the Tahsildar have appeared through the District Government Pleader and filed a joint written statement. Defendant No.4 the purchaser of the property contested the suit. The defendant No.5 is the brother of the plaintiff. The defendant No.4 took up a plea that the suit is not maintainable in terms of Section 118 of the Karnataka Cooperative Societies Act, 1959. That he is a bonafide purchaser for a value. That documentation has been completed in accordance with law. That no fault could be placed with the defendant for having purchased the said property. Hence it is pleaded that the suit be dismissed. Based on the pleadings the trial court framed the following issues: