SYNDICATE BANK Vs. PUNDALIKA NAYAK

JUDGEMENT

(1.) This is a revision by the petitioner-decree-holder-auction purchaser against the order dated 29th March, 1983, passed by the 1st Additional Civil Judge, Mangalore, in Misc. Case No. 19 of 1982 and on I. A. No 1 filed in Execution Case No. 129 of 1978, dismissing them bath.

(2.) There was a partition between G. Madhava Nayak and the other members of his family including respondents-1 and 2 as per the registered duplicate partition deed Exhibit D2 and Exhibit P13 dated 23-6-1967. In that partition, the suit properties had fallen to the share of respondents-1 and 2. Respondents-1 and 2 effected an equitable mortgage in respect of the suit property in favour of Vijaya Bank as per Exhibit D1 dated 5-11-1971. While effecting the equitable mortgage as above, respondents-1 and 2 produced the duplicate partition deed Exhibit D2 dated 23-6-1967 and other documents by way of security for the loan advanced by the Vijaya Bank to them. The Vijaya Bank filed a suit in O. S. No. 109 of 1973 as per the certified copy of the plaint Exhibit D11 against the present respondents-1 and 2 to recover Rs. 23, 193-82 due under the said equitable mortgage. A preliminary decree as per the certified copy of the preliminary decree Exhibit D5 was passed on 16-9-1975 in O.S.No 109 of 1973 against the present respondents 1 and 2. A final decree as per the certified copy Exhibit D6 came to be passed on 21-9-1976 in the said suit filed by Vijaya Bank. Thereafter Vijaya Bank sued out execution in Execution Case No. 19 of 1977 and with the permission of the Court purchased the suit property itself for Rs. 28,000/- in a Court auction sale held on 15-7-1978. The said Court auction sale was confirmed on 17-11-1978. The Vijaya Bank obtained the sale certificate as per Exhibit D4. Thereafter the Vijaya Bank filed an application on 16-3-1979 under Order 21 Rule 95 C.P.C. in Miscellaneous Case No. 13 of 1979 for possession. As per the delivery receipt Exhibit D9, the Vijaya Bank took possession of the suit properties on 7-4-1979. Exhibit D8 is the certified copy of the Memo dated 22-7-1980 relating to the taking of the possession of the property. Thereafter the Vijaya Bank sold the suit properties to respondent-3 as per the sale deed Exhibit D10 dated 2-2-1982 for Rs. 88,000/-and handed over possession of the properties to respondent-3. Respondent-4 is a tenant in respect of a portion of the suit properly who had initially attorned to Vijaya Bank and thereafter to respondent-3.

(3.) Respondents-1 and 2 to whom the suit properties had been allotted in the partition as per Exhibits P13 and D2, again effected an equitable mortgage regarding the suit properties in favour of the revision petitioner-Syndicate Bank on August 28, 1972. Respondents-1 and 2 produced the duplicate partition deed Exhibit P13 and other documents while creating the equitable mortgage. Exhibits P2 to P7 are the documents evidencing the equitable mortgage by respondents-1 and 2 in favour of the Syndicate Bank on August 28, 1972. The decree holder-revision petitioner Syndicate Bank filed a suit in O. S. No. 107 of 1975 on 13-8-1975 to recover Rs. 33,561-21 from respondents-1 and 2. A preliminary decree came to be passed in the said suit on 13-8-1975 against respondents-1 and 2 in the said suit. On March 30, 1977, a final decree as per Exhibit P16 came to be passed in the said suit against respondents-1 and 2. The Syndicate Bark sued out execution in Execution Case No. 129 of 1978 against respondents-1 and 2 to recover the said amount due under the final decree Exhibit P16. The suit properties were brought to sale in the said execution 21-8-1981. The decree holder Syndicate Bank itself with the permission of the Court, purchased the suit properties in a Court auction held on 21-8-1981 for Rs. 35,000/-.The sale was confirmed on October 22, 1981. The sale certificate Exhibit P17 dated 7-12-1981 was issued to the decree holder Syndicate Bank. The Syndicate Bank filed an application in Miscellaneous Case No. 19 of 1982 under Order 21 Rule 95 C.P.C. against respondents-1 and 2 for obtaining possession of the properties purchased by it in the Court auction sale. When the bailiff went with the delivery warrant to the suit properties, respondent-3 offered obstruction to the delivery of the possession to the Syndicate Bank and gave obstruction to the said effect in writing to the bailiff. Respondent-4 who was in possession of a portion of the suit property as a tenant also offered obstruction. Hence the Syndicate Bank filed I.A. No. 1 in the said execution (Execution Case No. 129 of 1978) under Order 21 Rule 97 C.P.C. to remove the obstruction and to put it in possession of the property after removing the obstruction.