E SUBRAHMANYAM Vs. A P S F C

JUDGEMENT

(1.) This C.R.P. is filed against the order in C.M.A.No.3 of 1995 dated 12-6-1996 on the file of Subordinate Judge, Nandyal. CM.A.No.3 of 1995 is filed against the order in I.A.No.446 of 1994 in O.S.No.240 of 1994 on the file of Principal District Munsif, Nandyal.

(2.) By the impugned order, the learned Subordinate Judge while confirming the order of the District Munsif in I.A.No.446 of 1994 dismissing the I.A., held that the petitioner/appellant-plaintiff purchased 2 cents of land under Ex.A-3 sale deed dated 10-12-1993 from the second defendant. But, prior to the said sale, the second defendant deposited his title deeds Exs.B-4 and B-5 and also executed hypothecation deeds Exs.B-6, B-7 and B-8 in favour of the first defendant and that the first defendant filed Exs.B-4 and B-5 registered sale deeds dated 27-12-1991 and 20-5-1991 respectively, under which the second defendant had purchased 23 cents of land in Sy.Nos.227 and 286 for the purpose of establishing an oil mill andhe deposited with the 1st respondent Corporation as security for the loan granted to him. The 2nd defendant committed default in payment of the amount due to the 1st defendant- Corporation and so the first defendant-Corporation is proceeding against the machinery and the landed property of the second defendant for realisation of the amount due. In pursuance of that, they advertised for sale of the property, including the suit property in Eenadu paper vide Exs.A-1 and A-2. As the purchase by the appellant-plaintiff was after the mortgage in favour of the 1st defendant Corporation, the appellant-plaintiff does not have any right to protect his interest, because the suit property was also mortgaged to the first defendant. Therefore, the appellant-plaintiff failed to establish prima facie case and balance of convenience also in his favour. The sale in favour of the appellant is subject to the mortgage in favour of the 1st respondent- Corporation. Therefore, the learned Judge observed that the learned Munsiff is right in not granting injunction against the first defendant -Corporation restraining them for bringing to sale 2 cents of land purchased by him under Ex. A-3 dated 10-12-1993. Aggrieved by the same, the present revision petition is filed.

(3.) The main argument of the learned Counsel for the petitioner/appellant- plaintiff is that he purchased 2 cents of land under Ex.A-3 sale deed dated 10-12-1993 and the first defendant in order to realise the amount due from the 2nd defendant intends to bring the property to sale. He further submits that the property which satisfies the requirement of the 1st defendant should be brought to sale and not the entire property. The extent of land in 0-23 cents, in which the second defendant is having an oil mill is sufficient to discharge the debt due to the 1st defendant. It is not the case of 1st defendant that the extent of land over which the oil mill is situated is not sufficient to satisfy the dues to it. Hence, it should be prevented from bringing the property to sale. In support of his contentions, the learned Counsel for the revision petitioner relied on the decision of the Supreme Court reported in Ambati Narasayya vs. M. Subba Rao, while the Counsel for the respondent submitted that the property of the 2nd defendant is being sold to realise the dues advanced by the 1st defendant-Corporation, i.e., Financial Corporation, under Section 29 of the State Financial Corporations Act, 1951 (in short 'the Act') and a special provision is made, in the Act empowering the Financial Corporation to bring the property mortgaged to sale, in case, where the borrower from the Financial Corporation committed default in payment of the amounts advanced to him and the provisions of Civil Procedure Code are not made applicable to a sale under Section 29 of the Act. Therefore, the learned Counsel for the respondent submitted that the decision cited (1) supra relied upon by the learned Counsel for the petitioner is not applicable to the facts of the present case.