JOGINDER SINGH Vs. BALWANT SINGH

JUDGEMENT

(1.) This order of mine will dispose of Civil Revision Nos. 1837 and 2160 of 1992, both preferred by Joginder Singh, one of the judgment-debtors. State Bank of India filed a suit for recovery against M/s. Cooks manufacturing Co., Cooks Buildings, Model Town, Sonepat as well as against its partners. Joginder Singh is one of the partners and was a defendant in the suit. Balwant Singh who was one of the guarantors was also made a defendant. The firm as well as the partners did not appear and were proceeded against ex-parte. Balwant Singh along contested the suit. The suit was dismissed initially by the trial Court but on appeal by the State Bank of India, the suit was decreed. Accordingly, a decree was passed with interest against the firm, the partners and the guarantors. Balwant Singh has preferred Regular Second Appeal No. 179 of 1981 which is stated to be pending. For securing the loan, the property situated at Sonepat was equitably mortgaged with the bank. In execution, when the property which was mortgaged with the bank, was being sold, objections were preferred by the Sonepat Central Co-operative Bank as well as by the other co-sharers, namely, Krishna Kumar and Ram Kumar, inter alia pleading that the property had already been mortgaged with Sonepat Central Co-operative Bank from whom the firm had taken loan. Trial Court, on determination, found that the property which had been equitably mortgaged with the bank is not available for realisation of the decretal amount as it already stood mortgaged with Sonepat Central Co-operative Bank. The fact of property having already been mortgaged was never disclosed to State Bank of India at the time of securing the loan. In execution, number of efforts were made to secure the presence of the judgment-debtors but all proved futile. Trial Court, therefore, had no alternative but to pass an order of the detention of the judgment-debtor in civil prison on application made for that purpose by the bank. The order issuing warrants and detention in civil prison is being impugned by Joginder Singh in Civil Revision No. 2160 of 1992.

(2.) Bank had also applied for attachment of immovable property of Joginder Singh (petitioner herein). The property was attached but instead of filing any objection, an adjournment was sought which was declined by the trial Court on the ground that there was sufficient time for filing objection, if any. Moreover, execution is pending since 1981. So, there was no justification in granting an adjournment. Consequently, warrants of sale of the attached property was ordered. This order is being impugned in Civil Revision No. 1837 of 1992.

(3.) Mr. C.B. Goel, Advocate, learned counsel for the petitioner, submitted that the order for detention in civil prison could not be passed without issuing show cause notice to the petitioner. He further submitted that the trial Court ought to have given an opportunity to the petitioner to file objections against order of the attachment and sale of property.