VARANASI LAKSHMI Vs. STATE BANK OF INDIA

JUDGEMENT

(1.) Ippili Appalanarasaiah Patnaik, second respondent in the civil miscellaneous appeal-Auction purchaser, filed C.M.A.M.P.No.1978 of 2006, to vacate the interim stay granted by this Court in C.M.A.M.P.N0.814 of 2006 in C.M.A. No. 410 of 2006. The counsel on record advanced their submissions in elaboration in the civil miscellaneous appeal and made a request for disposal of the civil miscellaneous appeal itself.

(2.) Sri Taddi Nageswara Rao, learned counsel representing the appellant in the C.M.A., Varanasi Lakshmi, the third judgment debtor made the following submissions. The learned counsel would submit that the appellant as petitioner filed an application E.A.No.29 of 2003 in E. P. No. 16 of 2001 in O.S.No.6 of 1999 on the file of the Senior Civil Judge, Rajam, under Order XXI Rule 90 of the Civil Procedure Code (hereinafter in short referred to as 'the Code' for the purpose of convenience) to set aside the sale of E. P. schedule buildings held on 30/1/-2003 on the grounds of irregularities and fraud in publishing and describing the building in question. The counsel also points out that the application was dismissed without furnishing an opportunity or atleast calling upon the appellant-petitioner to furnish security and further without giving an opportunity to the appellant-petitioner to adduce evidence. In the alternative the learned counsel would submit that the suit itself was based on a mortgage transaction by the State Bank of India represented by its Branch Manager, Palakonda, first respondent in the C.M.A. and hence the question of applicability of the proviso or calling upon to furnish security in such a case may not be applicable at all. The learned counsel also placed reliance on certain decisions in this regard.

(3.) Per contra, Sri B.M. Patro, learned counsel representing the auction purchaser, the second respondent in the C.M.A., made the following submissions. The learned counsel would maintain that absolutely there are no merits in the application and when there are no merits, the application can be rejected even at the threshold. The learned counsel placed reliance on certain decisions to substantiate his contentions. While further elaborating submissions, the learned counsel would point out that not only on the ground of non-furnishing of security, but after recording other reasons, the application was dismissed, and hence, the impugned order cannot be found fault. The counsel also had taken this Court through the reasons recorded in paragraphs 10 and 11 of the impugned order and further would point out to the peculiar conduct of the appellant-petitioner-third judgment debtor in E.P. No. 16 of 2001 in O.S. No. 6 of 1999 aforesaid, and would submit that in the light of the same, the application itself is not a bona fide one, and hence, dismissal of the application in the facts and circumstances to be held as just and proper.