T SEVENTHILINGAM Vs. KARUR VYSIA BANK LTD TRICHY

JUDGEMENT

(1.) THE plaintiff/appellant filed the suit in O.S.No.882 of 1989 on the file of the learned II Additional District Munsif, Tiruchirapalli praying for a decree for permanent injunction restraining the first defendant/first respondent-bank from interfering with the enjoyment of the suit property.

(2.) THE first defendant/first respondent-bank filed a suit in O.S.No.926 of 1978 to enforce the mortgage executed by the second defendant/second respondent. THE said mortgage was executed on 24.5.1976. THE said suit filed by the first respondent-bank was decreed and the second respondent went up to the High Court, aggrieved against the said decree, but failed in his attempt. It is relevant to mention here that the second respondent obtained a loan on 24.5.1976, by executing the said mortgage. At this stage, the appellant/plaintiff who is the son of the second respondent filed the present suit to stall the proceedings taken by the first respondent to executing the decree. THE present suit was filed on the basis that a partition deed was entered into on 1.8.1977 and so without impleading him as a defendant in the mortgage suit, as he is the owner of the property, the first respondent cannot execute the same and it is unenforceable against the appellant. THE lower court without accepting the case of the appellant/plaintiff, dismissed the present suit. THE lower court found that the property in question is not the ancestral property and it is the absolute property of the second respondent/second defendant and so the appellant/plaintiff is not having any right of redemption in the property. Aggrieved against the said judgment and decree the plaintiff filed an appeal in A.S.No. 105 of 1996 on the file of the learned Principal Sub-Judge, Tiruchi. Even the lower appellate court concurred with the findings of the lower court dismissed the appeal. Aggrieved against the same the plaintiff/appellant has filed the above second appeal.

(3.) THE learned counsel appearing for the appellant has further relied on the Full Bench decision of the Andhra Pradesh High Court, namely, P.G.Reddy v. Golla Obulamma P.G.Reddy v. Golla Obulamma P.G.Reddy v. Golla Obulamma A.I.R. 1971 A.P. 363. In the said decision, while construing the scope of O.34, Rule 1 of the Civil Procedure Code, it is held as follows: