M. R. SATHEESH KUMAR Vs. SOYA. B.

JUDGEMENT

(1.) The appellant is the first respondent in E.A.No.1394/2007 filed under Order 21 Rule 58 of the Code of Civil Procedure and the decree holder in the suit. The 1st respondent is the claim petitioner who filed E.A.No.1394/2007. The 2nd respondent is the 2nd respondent in E.A.No.1394/2007 and judgment debtor in the suit.

(2.) The brief facts which are essential for the disposal of the Appeal are: The appellant filed O.S.No.54/2003 on 30/1/2003 against the second respondent for realisation of an amount of Rs.1,01,550.00 with interest. The appellant obtained attachment before the judgment of the property of the 2nd defendant on 3/2/2003 as per order in I.A.No.700/2003. The suit was decreed in favour of the appellant as per the judgment and decree dtd. 31/10/2003. The appellant filed E.P.No.166/2005 for realisation of the decree debt. During the pendency of the Execution Petition, the first respondent filed E.A.No.1394/2007 praying to vacate the attachment over the plaint schedule property. The claim of the first respondent is that she purchased the property as per Ext.A1 Sale Certificate dtd. 18/2/205 from HSBC Bank, Vellayambalam, in the sale conducted by the Bank under the provisions of the Secularization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act) when the loan granted to the second respondent was defaulted by him to the Bank.

(3.) As per the allegations in E.A.No.1394/2007, the 1st respondent/claim petitioner purchased 1.72 Ares of property from the Bank as per Ext.A1 Sale Certificate and for Rs.3,25,000.00. She affected the mutation of the property and paid tax in her name. There is no charge over the property as on the date of the decree. The court has specifically disallowed the prayer for creating charge over the decree schedule property. The first respondent is a bonafide purchaser of the decree schedule property for valid consideration from the secured creditor-HSBC Bank.