N. RAMACHANDRAN Vs. M. JANAKI

JUDGEMENT

(1.) THIS second appeal is listed today for admission and I heard the learned counsel appearing for the appellant.

(2.) THE appellant, who has lost his case before both the Courts below, has come forward with this second appeal. The appellant has filed E.A. No. 4243 of 2007 in E.P. No. 3044 of 2006 in Tr.O.S. No. 249 of 1996 before the trial Court under Order XXI Rule 58 of CPC praying to adjudicate his claim, as a third party in the suit, to release the suit property bearing Door No.42/7, Old No.29, II Floor, Thambiah Reddy Street, West Mambalam, Chennai comprised in T.S. No. 11 from the purview of attachment made in E.P. No. 3044 of 2006 and also to set aside the sale deed 22.03.2005 executed by the Registrar, City Civil Court, Chennai in favour of the third respondent in this appeal. For the sake of convenience, this property shall hereinafter be referred to as ''the property '' in this appeal.

(3.) ACCORDING to the appellant, the second respondent herein is the original owner of the property. It is the case of the appellant that the second respondent herein has executed a promisory note on 01.04.1994 and borrowed a sum of Rs.1,50,000/ - from him agreeing to pay interest on the loan amount. At the time of borrowing the amount, the second respondent deposited the original title deeds in respect of the property with an intention to create mortgage over the same. Further, on 12.03.1995, the second respondent executed a general power of attorney in favour of the appellant authorising him to deal with the property and also to clear the dues payable by him to Rajeswari Constructions. In and by the said power of attorney deed dated 12.03.1995, the second respondent has also authorised the appellant to alienate the property for a valuable sale consideration to third parties. According to the appellant, the second respondent also assured and undertook to dispose of the property in his favour, if he is unable to repay the loan amount borrowed on 01.04.1994. It is the further contention of the appellant that on behalf of the second respondent, he has paid Rs.2,38,700/ -, Rs.35,000/ - on 08.04.1995 and Rs.13,700/ - on 11.04.1995 to Rajeswari Construction. While so, the second respondent himself requested the appellant to purchase the property for Rs.5,00,000/ - and this sum shall be adjusted towards the amount payable by the second respondent. The second respondent also permitted the appellant to let out the property to tenants and to realise the rentals received therefrom. On the basis of such oral arrangement, the appellant also let out the property to tenants and is in possession of the property by paying all the taxes and charges thereto. The appellant, as a mortgagee, is having all the title deeds, property tax receipts and other documents to assert his right and title over the property. In those circumstances, the appellant came to know that the property has been attached by the trial court in E.P. No. 3044 of 2006 in the suit filed by the first respondent herein in O.S. No. 249 of 1996 in which the third respondent herein has purchased the property in an auction sale conducted by the Court. Therefore, the appellant has filed the aforesaid E.A. No. 4243 of 2007 for the relief claimed therein.