D L SRIDHAR Vs. C R CHANDRAMOHAN

JUDGEMENT

(1.) THIS appeal is filed against the order dated 15-9-2001 passed by the Principal Civil Judge (Sr. Dn.), Davangere in Misc. Case No. 213/1993 whereunder the learned Prl. Civil Judge dismissed the Misc. Case filed under O. 21, R. 58 of C.P.C. for raising attachment made in respect of the schedule property in Execution Petition No. 520/1989.

(2.) THE facts of the case, in brief, are as follows. Respondent No. 2 herein who was respondent No. 3 before the trial Court had filed a suit O.S. No. 135/1987 against Sri Murugendrappa and Sri C. R. Chandra - mohan - respondent No. 1 herein. Respondent No. 2 herein had advanced loan in favour of respondent No. 1 - Chandra - mohan and he being a hire purchaser and Sri Murugendrappa and Sri M. V. Srinivas stood as guarantors in executing a hire purchase agreement in respect of vehicle No. MEG 8910 in favour of respondent No. 2 i.e. plaintiff in O.S. No. 135/1987. Therefore respondent No. 2 became the legal owner of the vehicle and possession was delivered to Sri C. R. Chandramohan, arrayed as defendant No. 1 in the said suit and accordingly the said suit was filed by the second respondent - plaintiff requesting the Court to pass a decree for Rs. 50,000/- with future interest at 14% and the said suit came to be decreed in favour of respondent No. 2. Accordingly respondent No. 2 filed Execution Petition No. 520/1989 on the file of the Civil Judge, Udupi. Subsequently the decree came to be transferred to the Court of Civil Judge (Sr. Dn.), Davangere. When the said execution petition was pending, the appellant herein is said to have purchased the property from H. K. Mallikarjunappa who is not a party before this Court, under a registered sale deed dated 15-11-1991 for a valuable consideration of Rs. 98,000/-. Sri Mallikarjunappa had purchased the property from Murugendrappa, who is not a party before this Court, on 5-12-1990 under a registered sale deed for valuable consideration. The said Mallikarjunappa had delivered the original sale deed dated 5-12-1990 to the petitioner namely Sri D. L. Sridhar. The said Mallikarjunappa initially entered into a registered agreement of sale with Chandramohan in the suit on 19-4-1990 and thereafter executed a sale deed on 5-12-1990. Before the sale deed came to be executed in favour of H. M. Mallikarjunappa, the property in question was attached in Ex. P. No. 529/1989 but the sale deed came to be executed on 5-12-1990. Therefore the appellant herein filed a petition under O. 21, R. 58, C.P.C. and the same came to be numbered as Misc. No. 213/93 before the executing Court in Ex. P. No. 520/1989 to raise attachment. The learned Civil Judge (Sr. Dn.) held an enquiry, recorded the evidence of the appellant and his sons and marked in all 16 documents produced by him and after considering the evidence dismissed Misc. P. No. 213/1993. Against this order of dismissal, the appellant a subsequent purchaser of the property has come up with this appeal.

(3.) IT is contended by the learned counsel for the appellant that he being a lawful purchaser of the property from one H. Mallikarjunappa who had purchased the property from Murugendrappa, the property in question is an immovable property. The appellant is not a surety to the main borrower namely, Chandramohan. He had purchased the vehicle in question from H. Mallikarjunappa under a registered sale deed. He being a lawful purchaser, he has rightly filed the petition Misc. No. 213/1993 to raise attachment made in respect of the schedule property in Ex. P. 520/1989. The trial Court utterly failed to consider the fact that before attachment of the property in question, an agreement was entered into by Murugendrappa with Mallikarjunappa. Murugendrappa and M. V. Srinivas stood guarantors to the hire purchase agreement which was executed by Chandramohan in favour of respondent No. 2 and respondent No. 2 herein obtained a decree in O.S. No. 135/87 against Chandramohan, the main borrower and Murugendrappa the guarantor. Thereafter the respondent No. 2 herein got the property in question attached in Ex. P. 520/1989. It is argued that the appellant herein is a second purchaser of the property in question. He purchased the property under a registered sale deed dated 15-11-1991. Therefore if the property was agreed to be sold under a registered agreement by Chandramohan in favour of Mallik - arjunappa, the property in question could not be attached. Therefore even if the property was attached in execution petition by the decree - holder respondent No. 2, that the registered agreement executed by Chandramohan in favour of Mallikarjunappa prevails over it. Therefore the appellant being a second purchaser became absolute owner and the attachment, if any, made in the execution petition filed by the respondent No. 2 ought to have been raised. It is argued that the remedy available for respondent No. 2 to recover the amount due is to sue the main borrower and the guarantors only. Hence the judgment and order passed by the learned Civil Judge (Sr. Dn.) in Misc. No. 213/1993 is erroneous, perverse and illegal and incorrect and is liable to be set aside.