AMULYA GOPAL MAZUMDER Vs. UNITED INDUSTRIAL BANK LTD

JUDGEMENT

(1.) This appeal is preferred by the defendant appellant against the judgment and order passed by the Trial Court granting temporary injunction restraining the appellant from taking delivery of possession of the disputed property in an execution case in which he as mortgagee decree-holder auction purchased the property.

(2.) The parties, as appears, have been fighting series of successive litigations centering round two mortgages created over the disputed properties. We need not recite over again the facts of this case for those appear to have been briefly stated in the judgment by the trial Court. The admitted facts, however, are that the predecessor of respondent No.2 Messrs. Eagle Plywood Industries (P) Ltd. created a mortgage for a sum of Rs.5,00,000/- over some of the immovable properties belonging to in favour of the present appellant who is enforcement of that mortgage obtained a final decree for sale and in execution of that final decree auction purchased those properties but that decree was obtained without making the respondent No.1 a party. The same company created a subsequent mortgage in respect of these properties along with other properties namely, factory sheds, machineries etc. in favour of the predecessor of the present respondent No.1 some time in 1951 and thereafter on its amalgamation the same company created a fresh mortgage in favour of the respondent No.1 and their total dues would come to about Rs.6,00,000/- (Six Lacs). The respondent No.1 brought a suit sometime in 1965 for enforcement of its mortgage making the present appellant a party as defendant No.6 in that suit and has since obtained a preliminary decree. The real controversy arose when the present appellant after purchasing the properties mortgaged in his favour in auction sale in execution of his decree set the executing court in portion for taking delivery of possession. There he has resisted by lessee who was inducted for a period of 21 years by a Receiver appointed at the instance of respondent No.1 with the consent of the mortgagor the respondent No.2. Over this dispute as regards taking delivery of possession series of proceedings followed and ultimately this court took the view that the lessee had o right to resist the appellant from taking possession of the property. The lessee's suit, however, for declaration of title and for permanent injunction is pending.

(3.) Thereafter, on 27th May, 1973, the Bank, respondent No.1 filed a suit as a puisne mortgagee for redemption and in that suit it prayed for granting a temporary injunction restraining the present appellant from taking delivery of possession of the properties auction purchased by him in execution of the title execution case No.8 of 1957. The trial court granted the temporary injunction till the disposal of the suit and that is how, in short, the appellant felt aggrieved and preferred the present appeal.