BACHU LAKSHMAN Vs. B SANJEEVA REDDY

JUDGEMENT

(1.) Claim petitioner is the revisionist herein. Aggrieved by the order of rejection passed by the lower Court in I.A. No. 397/72 filed by the petitioner for vacating the attachment of the property before judgment and for undoing the same and also on the ground that the property stood mortgaged to him prior to the date of the suit O.S. No. 14/72, by way of registration, this revision is preferred.

(2.) The contentions of Sri M. Venkata Rao, learned counsel for the petitioner are: (1). That the property covered by mortgage, which is not void, cannot be attached before judgment (2) unless the transactions of mortgage are void, on filing a suit, it cannot be attached even after obtaining the decree; and (3) that as it would be open to the mortgagee to raise fresh credit in collusion with the mortgagor, and therefore there is a probability of the mortgage being valid. All the contentions could be disposed together. CRP No. 4223 of 1976 dt. 8-8-1983.

(3.) Before examining the questions raised, the relevant material facts may be set out. The defendant has acknowledged his debt to the 1st respondent herein by way of entries made in his account books on 28-3-1972. The mortgage deed has been registered on 1-4-1972. The suit has been filed on 4-4-72. The order of attachment before the judgment was on 8-4-1972. The I.A. filed by the claim petitioner was on 22-8-1972. The said I.A. was dismissed on 12-9-78. The suit itself was decreed on 31-12-1976. It is rather difficult to comprehend as to how the I.A. has come to be disposed of 2 years later than the judgment and decree passed in the suit itself. Be that as it may, the lower court dismissed the I.A. on the ground that the mortgagor and mortgagee are since relatives i.e., co-brothers brought into existence the collusive document, mortgage deed, and there were positive entries in the books of account which have been acknowledged by the defendant mortgagor on 23-3-72 and the mortgage deed though registered has been got executed on 1-4-1972 only from the dates Jater than the entry and then the suit is filed four days thereafter by the creditor and the property was got attached on 8-4-72 to which the claim petition was filed on 22-8-72. That apart, the mortgagee did not take any steps for impleading himself to the suit. The mortgagee petitioner was not also summoned as the witness in the suit. Lastly, during the enquiry in the said I.A., the mortgagor defendant obtained permission from appearing. It is also stated that no further appeal was preferred against the decree and it has become final. In the light of these circumstances and also the findings, I find little of no substance in the contentions of the learned counsel for the petitioner.