K L GEETHA NANDINI Vs. K L NAGARJU

JUDGEMENT

(1.) THIS Revision Petition is directed against the order dated 31. 10. 2008 made in E. P. No. 86 of 2006 in O. S. No. 188 of 2001 on the file of the Court of the senior Civil Judge, Anantapur.

(2.) THE 2nd respondent herein is the plaintiff and he filed the suit for recovery of Rs. 7,21,200/- based on a Registered Simple Mortgage Deed executed by the 1st respondent herein. Though a written statement was filed contesting the suit claim, the defendan/1st respondent herein failed to adduce any evidence and consequently he was set ex parte. Thereafter, by judgment dated 23. 03. 2004 the suit was decreed as prayed for and a preliminary decree was passed to that effect with a direction that the amount decreed shall be paid on or before 21. 07. 2004 in default an application can be made by the plaintiff for a final decree for sale of the mortgaged property or a sufficient part thereof. Since the defendant/1st respondent herein failed to pay the decretal amount within the time granted for redemption, the plaintiff/ 2nd respondent herein filed an application for final decree and accordingly a final decree was passed on 05. 10. 2005. Pursuant thereto, the plaintiff/decree-holder/2nd respondent herein filed E. P. No. 86 of 2006 for sale of the E. P. schedule mortgaged property for realization of the final decree amount. The judgment-debtor / 1st respondent herein filed a counter contending that the E. P. schedule property being ancestral property in which his children also got a share, cannot be brought to sale without deciding the share of his children. While so, the Revision petitioners, who are the children of the judgment-debtor (1st respondent herein), filed E. A. No. 175 of 2008 under Order 21 Rule 58 of C. P. C. claiming 2/3rd share in the E. P. Schedule Property. It was pleaded that the claim petitioners and the judgment-debtor constitute a Hindu joint Family and that the E. P. Schedule property belongs to the joint family and that all of them are in joint possession and enjoyment of the same. It was contended that the alleged debt incurred by the judgment-debtor was not binding on the claim petitioners since the same was not for the benefit of the joint family. It was also alleged that the decree in O. S. No. 188 of 2001 was a collusive decree and the E. P. schedule properties cannot be brought to sale. While the claim petition was coming up for enquiry, the decree-holder/2nd respondent herein filed a Memo in the Execution Petition seeking to bring the admitted 1/3rd share of the judgment-debtor to sale claiming that the same would be sufficient to satisfy the decree.

(3.) ON the basis of the said memo, the Court below while relying upon a decision of the Supreme Court in BALAKRISHNAN v. MALAIYANDI KONAR, 2006 3 SCC 49 directed auction of 1/3rd share of the E. P. schedule property. Aggrieved by the said order dated 31. 10. 2008, the present Civil Revision Petition is filed by the claim petitioners. I have heard the learned counsel for both the parties and perused the material on record. The learned counsel for the Revision petitioners vehemently contended that the order under Revision which was passed merely on the basis of a Memo filed by the Decree-holder without even giving an opportunity to the claim petitioners to file their counter is arbitrary and illegal. It is also contended that sale of the judgment-debtor's undivided interest being impermissible under law, the order under Revision is liable to be set aside on that ground alone. On the other hand, the learned counsel for the respondents submitted that since there is no dispute about the entitlement of the judgment-debtor in respect of 1/3rd of the E. P. schedule property and the said 1/3rd share is sufficient to discharge the E. P. claim, the Court below had rightly ordered sale of the 1/3rd share in the interest of justice. Admittedly the suit is filed on the basis of a mortgage deed with a prayer for sale of the mortgaged plaint schedule property for realization of the money due to the plaintiff. A preliminary decree was passed on 23. 03. 2004 granting four months time for redemption. Since the judgment-debtor committed default, a final decree was passed on 5. 10. 2005 directing sale of the plaint schedule mortgaged property. Such direction for sale in a mortgage decree is in itself sufficient authority for the sale since the same is based on the specific charge created on the mortgaged property. The law is well-settled that a claim petition under Order 21 Rule 58 of C. P. C. cannot be maintained in execution of mortgage decrees. Proceedings by way of claim are applicable only in cases of money decrees where property of the judgment-debtor has been attached. The language of Order 21 Rule 58 of C. P. C. itself makes clear that a claim can be maintained only where an attachment is subsisting. In the instant case admittedly the decree is a mortgage decree. There was already a direction in the final decree dated 5. 10. 2005 for sale of the plaint schedule mortgaged property and the said decree has become final. Hence there cannot be any objection for sale of the said property. The claims, if any, by a third party in respect of such property can be adjudicated only by way of filing a separate suit