SHANMUGAM Vs. SYNDICATE BANK

JUDGEMENT

(1.) The first respondent filed a suit in O.S. No. 336 of 1981 on the file of the Sub-Court, Coimbatore for recovery of money from the respondent No. 2 and one Kanni Boyan and Nammal. The defendants 2 and 3 in the suit borrowed money from the first respondent-bank, and their mother Nallammal, the fourth defendant in the suit executed a mortgage deed with respect to the property in question in 1978 as security in favour of the said bank. The said Nallammal seems to have executed the settlement deed on 7-3-1980 in favour of the petitioners who are the sons of the second defendant. To enforce the said mortgage and recover the amount, the first respondent-bank filed the suit on 23-3-1981. Since there were some superstructures in the property settled in favour of the petitioners, the said Nallammal seems to have executed a release deed on 20-1-1982 with respect to those superstructures, and she died in 1982. Preliminary decree was passed on 5-2-1985 and final decree was also passed on 22-7-1986. Since the defendants 2 and 3 also died, the Execution Petition in E.P. No. 137 of 1988 was filed by the said bank against all other Legal Representatives of the deceased defendants. In the Execution Petition, the petitioners herein filed counter stating that they are the settlees with respect to the property hypothecated to the said bank and they are entitled to the equity of redemption, and the decree obtained without impleading them cannot be enforced. The court below rejected the objection raised by the petitioners and directed to proceed with the execution petition. Aggrieved against the same, the petitioners have filed the above revision.

(2.) The learned counsel appearing for the petitioners has submitted that the court below is not correct in deciding that the petitioners herein are the universal donees. As the fourth defendant has settled only item No. 1 of the suit properties mortgaged, they cannot be construed as universal donees under Section 128 of the Transfer of Property Act. He has further submitted that since the said superstructures have also been settled in favour of the petitioners, the decree obtained in 1985, without impleading them cannot be enforced in law in view of Order 34, Rule 1 of the Code of Civil Procedure. The learned counsel has further submitted that in the absence of any pleading, the court below is not correct in holding that the said release deed in favour of the petitioners with respect to the said superstructures is fraudulent one.

(3.) While answering to the abovesaid submission, the learned counsel appearing for the first respondent-bank has submitted that the settlement deed is with respect to both the properties in question and so the petitioners should be construed only as universal donees as contemplated under Section 128 of the Transfer of Property Act. According to the learned counsel, even with respect to the second item of the suit properties, the right has been given only to the petitioners. The learned counsel has further submitted that the petitioners are the Legal Representatives of the deceased defendant No. 4 and so the mortgage debt would bind on them, and the order of the court below cannot be assailed.