CENTRAL BANK OF INDIA Vs. NACHHATTAR SINGH

JUDGEMENT

(1.) THE brief facts giving rise to filing of these applications are that the applicant/appellant-Bank filed a Civil Suit for recovery against (respondent No. 3 M/s Uptodate Garments, Bank Road, Muktsar/borrower) which was decreed on 16.2.1989. Since the property was mortgaged in favour of the applicant/appellant-Bank, the decree also provided for sale of the mortgaged property. During execution proceedings of the aforesaid decree, the said property was sold and defendant No. 4(now respondent No. 5 purchased the property in dispute for Rs. 92,000/-. The sale was confirmed by the court and sale certificate was also issued on 12.8.1992. Defendant No. 4 took possession of the property in dispute on 19.8.1992. The plaintiff-respondent Nos.1 and 2 filed Civil Suit No. 220/92 of 8.10.1992 for declaration and permanent injunction claiming that they are owners in possession of the house property as detailed in the heading of the plaint and defendants have no concern with the same. It was pleaded by the plaintiffs that they had purchased the suit property from the defendants i.e., Sohan Lal vide sale deed dated 30.4.1985 for Rs. 12000/- and Civil Misc.No. 4025-26/C of 2007 in RSA No. 3203 of 1999 2 were put in possession of the suit property. Plaintiffs had made inquiries regarding the title of the vendors and after satisfying them about clearance of title purchased the same. The plaintiffs were bonafide purchasers for valuable consideration without notice of prior change. It was further stated that the plaintiffs had spent Rs. 30,000/- for filling the loose earth and had spent Rs. 2,50,000/- for raising construction over it and the defendants have no concern with the property. To the surprise of the plaintiffs on 23.8.1992, defendant Nos.2 and 3 along with other persons came to take possession of the suit property. On inquiries made by the plaintiffs, they came to know that defendant Nos. 3 and 4 in order to defeat the rights of the plaintiffs in collusion with defendant No. 1 without any notice to then plaintiffs suffered a collusive decree and thus the proceedings of the decree dated 16.2.1989 and subsequent proceedings are illegal, null and void and are not binding upon them.

(2.) UPON notice, the suit was contested by the defendants and it was stated that the property was under mortgage with the Bank . The attachment and sale was effected at the spot which was to the knowledge of the plaintiffs. They did not choose to file objections under Order 21 Rule 58 C.P.C. The property was sold in the execution. The present suit was field in connivance with Sohan Lal defendant No. 3. While denying all the allegations of the plaintiff, it was stated by the defendant No. 1 that the plaintiffs never purchased the property in dispute and the sale deed was forged and fabricated document. Defendant No. 4 in his written statement stated that he had purchased the property in dispute for Rs. 92000/- in the auction. The sale was confirmed by the court and sale certificate was issued on 12.8.1992 and he took the possession of the property in dispute on 19.8.1992. The plaintiffs were not in possession of the suit property at the time of filing of the suit and the same is not maintainable,. Defendant No. 4 also set up counter claim for mandatory injunction directing the plaintiffs to deliver possession of the property purchased by him in auction. The aforesaid suit was dismissed by the trial Court vide its judgment and decree dated 30.9.1997 and the counter claim of defendant No. 4 was allowed.

(3.) AGGRIEVED by the aforesaid judgment and decree dated 17.3.1999, passed by the lower Appellate Court, the applicant/appellant-Bank had filed RSA No. 3203 of 1999 in Civil Appeal No. 490 of 20.12.1997. The aforesaid appeal was admitted vide order dated 1.10.1999. Thereafter, the applicant/appellant- Bank moved Civil Misc. No. 5440-C of 2001 for staying the operation of the impugned judgment and decree dated 17.3.1999 passed by the lower Appellate Court.