UNION BANK OF INDIA Vs. CHERIAN

JUDGEMENT

(1.) The plaintiff in OS No. 439 of 1983, Sub Court, Trivandrum, is the appellant in this appeal. The defendants, three in number, are the respondents. The suit was filed for realisation of money. The plaintiff-Bank advanced, under a cash credit facility, a loan of Rs. 25,000/- to the third defendant on 7-2-1976. The third defendant mortgaged the plaint schedule property by depositing the title-deeds to the plaintiff-Bank on 5-10-1976. The third defendant committed default in payment. The plaintiff filed OS No. 321 of 1978 in the Sub Court, Trivandrum for recovery of money due from the third defendant. The suit was decreed on 8-2-1979. In execution, the properties were brought to sale. The execution petition was filed on 18-9-1980. Defendants 1 and 2 filed a claim petition, under O.21 R.58 CPC, stating that they purchased the plaint schedule property bona fide and for consideration. They stated that the decree obtained by the plaintiff in OS No. 321 of 1978 does not bind defendants 1 and 2. Stating that the mortgage in favour of the plaintiff subsists and that it is entitled to file the suit for sale of the mortgaged property, the present suit was laid.

(2.) The third defendant remained ex parte. Defendants 1 and 2 resisted the suit. They contended that the suit is barred by res judicata in view of the order passed in the claim petition in the former suit. Defendants 1 and 2 pleaded that they had no knowledge about the transaction between the plaintiff and the third defendant. The first defendant is a bona fide purchaser for value of the plaint schedule property and the building. It was so done after making reasonable enquiries and after obtaining the Encumbrance Certificate from the Sub Registry. There was no encumbrance. The plaintiff did not obtain the original document in respect of the plaint schedule property. The decree in OS No. 321 of 1978 will not bind defendants 1 and 2. There was no collusion between the third defendant and defendants 1 and 2. The present suit is not maintainable and deserves to be dismissed. The court below upheld the defence plea and held that the suit is not maintainable. The plaintiff has come up in appeal.

(3.) We heard counsel for the appellant, Mr. T. L. Ananthasivan. It was argued that defendants 1 and 2 were not parties in the earlier suit and so the present suit for realisation of the mortgage money is maintainable. It was further stated that it is open to the mortgagee to institute a second suit for recovery of the mortgage money. There is no force in the aforesaid submissions. It is conceded that the claim petition filed by defendants 1 and 2 under O.21 R.58 in execution in OS321 of 1978 was upheld. The question for consideration is whether the view of the court below that in such circumstances under O.21 R.58(2) there is a clear bar for adjudication of the right and interest in the property between the parties or their representatives, by a separate suit.