CHITALIA BROS Vs. SOUTH INDIAN BANK TRICHUR

JUDGEMENT

(1.) This appeal by the 5th defendant is preferred against the judgement and decree made by the Principal Civil Judge, Bangalore District, Bangalore, in O.S. No. 95 of 1971 decreeing the suit of the plaintiff against defendants 1 and 5 for a sum of Rs. 32,629-25 p. with costs and current interest at 6% per annum to be recovered by the sale of the plaint schedule properties and, in the event of any deficiency in the sale proceeds a decree for the balance amount to be recovered from the 1st defendant personally. The 1st defendant had remained ex parte before the trial Court and in this Court also and, therefore, the validity or otherwise of the second part of the decree against the 1st defendant personally does not arise for consideration in this appeal. We are only concerned with the mortgage decree made against the 5th defendant.

(2.) The facts in this case are not in dispute. But, certain legal issues arise for consideration which, in our view, require to be considered, since there is an earlier decision of a learned Judge of this Court (Kulkarni, J.) taking the view that the doctrine of lis pendens as propounded under S.52 of the T.P. Act (in short the Act) is not applicable to Court auction/sale see ILR (1986) 2 Kant 3776, Syndicate Bank v. Pundalika Nayak. Before we go into the facts of the case, we may mention that we had heard the learned counsel for the appellant on the ratio enunciated by this Court in Syndicate Bank and he conceded that that decision does not appear to be correct and, therefore, he preferred to challenge the decree of the trial Court on other grounds which were not taken before the trial Court. Though we were reluctant to permit him to argue on other questions excepting the point arising under O.XXI, R.58 of C.P.C. since they were questions of law, we have heard him on the other points also and this judgement will cover all the points argued by him in this appeal.

(3.) The facts stated briefly are as follows : The 1st defendant is the proprietor of money lending concern in Bangalore. He had some time in September 1967 obtained a loan of Rs. 50,000/- from the plaintiff/Bank on the security of the property bearing Nos. 263 and 264 situate in Raja Market, Avenue Road, Bangalore (hereinafter called the mortgaged properties). This security was created by mortgaging the properties by deposit of title deeds in favour of the plaintiff/Bank. The contents of the letter creating the mortgage by deposit of title deeds marked as Ex. P.1 before the trial Court may be noted since the point raised by the learned counsel for the appellant is that the document required registration inasmuch as the same does not amount to equitable mortgage by deposit of title deeds. The letter which, according to the plaintiff, created an equitable mortgage in its favour reads as under :