BALAKRISHNA THANTRI Vs. INDUSTRIAL CREDIT DEVELOPMENT SYNDICATE LTD

JUDGEMENT

(1.) THE revision petitioner is the 5th respondent in an execution Petition pending in the Sub Court , Kasaragod. THE decree concerned was passed by the Civil Judge, Udippi in O. S. No. 105 of 1985 and subsequently transferred for execution to the former Court. THE petitioner purchased the property as per a document of 1995 and he claims to have improved the property. When the execution Court notified the property for sale, the petitioner objected to the same after getting himself impleaded by filing necessary petition. THE decree holder contended that the property had been given as security at the time when an attachment before judgment was sought against defendants 2 to 4 and that as such the petitioner's right if ny, are only subject to the rights of the decree holder. THE Court upheld the decree holder's contention and dismissed the petition filed under 0. 21 Rr. 58 and 64 and S. 151 of the C. P. C.

(2.) MAINTAINABILITY of this revision is not challenged obviously because the property in question was neither the subject matter of the suit nor attached in the case. The question raised actually comes under s. 47 of the CPC and the mere mention of 0. 21 R. 58 in the petition does not alter the situation. The impugned order as such is not appealable and the revision has to be disposed of on the merits.

(3.) IN Thankamma v. Parameswaran Achari (1971 KLR 440)this Court found that a bond under 0. 38 R. 5 CPC is not executed in favour of any person and that unlike R. 41 R. 6 of the CPC there is no statutory declaration to create a mortgage. As far as bond under 0. 38 R. 5 of the CPC is concerned, there is no mortgage and S. 49 of the Registration Act is not attracted. It is only S. 17 (2) (vi) of the Registration Act, that would apply in such a case. It was held that not merely for pragmatic considerations but also because a security bond is sandwiched between two orders of Court and deriving force and vitality from the order of the Court and forming an integral part of the judicial proceedings, it can be treated as part of the Court's order and for this reason it is not registrable and is therefore admissible and enforceable even if unregistered.