TAMMANA RAJASEKHAR Vs. PALAKURTHI KANYAKA PARAMESWRI

JUDGEMENT

(1.) This civil miscellaneous appeal is filed as against the order made in I.A. No.283/ 2004 in O.S. No.81/2000 on the file of Senior Civil Judge, Machilipatnam under Order XLIII Rule 1 of the Code of Civil Procedure, hereinafter in short referred to as "Code" for the purpose of convenience.

(2.) The appellant/petitioner/plaintiff filed the said application praying for a temporary injunction restraining the 2nd respondent- State Bank of India, Main Branch, Machilipatnam, represented by its Chief Manager, Machavaram from bringing the schedule properties to sale in execution proceedings in O.A. No.311/2002 on 24.3.2004 or any other further date pending disposal of the main suit in the interest of justice. The said application was resisted and the application was dismissed.

(3.) The facts are not in serious dispute between the parties. It is the case of the appellant/ petitioner/plaintiff that he filed a suit for specific performance of agreement of sale on the file of Senior Civil Judge, Machilipatnam praying for the relief of specific performance as against only the 1st defendant/1st respondent in the present civil miscellaneous appeal since the 1st defendant/1st respondent failed to perform her part of the contract in pursuance of the agreement of sale dated 2-2-1999. It is also his case that he paid entire sale consideration and the plaint schedule property also was delivered to him on 3-3-1999 and ever since the appellant/petitioner/plaintiff has been in actual physical possession and enjoyment of the said property by paying land revenue. It is also the case of the appellant that the 2nd respondent- State Bank of India, hereinafter in short referred to as "Bank" for the purpose of convenience, alleging that the 1st respondent/ 1st defendant in the suit borrowed a loan from the Bank and deposited the title deeds in order to create equitable mortgage, got impleaded itself as 2nd defendant in the suit. Further, specific stand is taken that the said borrowing and the deposit of title deeds are subsequent to the agreement of sale and hence the alleged mortgage is not binding on the appellant/petitioner/plaintiff. Further, it is stated that though the 2nd defendant/2nd respondent has knowledge about the agreement of sale of the appellant/ petitioner/plaintiff and without impleading him as a party instituted O.A. No.311/2002 on the file of Debt Recovery Tribunal, Visakhapatnam for recovery of amount due to the Bank. Hence it is stated that inasmuch as though the Bank had knowledge about the agreement of sale in question, without impleading the appellant/petitioner/ plaintiff since the O.A. aforesaid had been instituted, the decree or order if any obtained would be vitiated by fraud.