Venkateshappa vs State Bank of India, N. Ramachandra Gowda and Venkataswamy

Aravind Kumar, J.—Heard learned Advocates appearing for parties and perused the order passed by Senior Civil Judge, Kolar in Execution No. 370/2005 dated 31.07.2013. Revision petitioner who is the objector in Execution proceedings No. 370/2005 filed an application under Order 21 Rule 90 CPC seeking for setting aside the auction sale of item No. 1 of petition schedule property as more-fully described in the execution petition contending inter-alia that said property is ancestral property and a suit had been filed by him in O.S. No. 703/1992 for partition and possession of properties described therein against respondent-2 herein and other family members and said suit ended in a compromise on 30.08.1993 under which portion of item No. 1 of the schedule property i.e., to an extent of 2.16 1/2 acres was allotted to his share and judgment debtor knowing fully about the said fact had raised a loan from decree holder on security of the said property on which he did not have exclusive right and absolute saleable interest and as such, judgment debtor has committed fraud in pledging said property belonging to him. On these grounds he sought for setting aside the sale.

On service of notice, purchaser namely, third respondent herein had filed objections to the said application and matter was contested. Objector got examined his Power of Attorney holder as P.W. 1 and also got exhibited 10 documents which are marked as Exs. P-1 to P-10. Said application has been dismissed on the ground that he did not place any material before Court to show collusion of judgment debtor and auction purchaser for the sale of above said property by relying upon the judgment in the case of Lakshmikutty Amma Retnamma Vs. P.N. Krishna Pillai and Others, . It was also noticed by the Executing Court that during the pendency of said application, objector had also filed a suit in O.S. No. 79/2013 seeking for a declaration that he is the absolute owner of said property and for perpetual injunction. Certified copy of the plaint and order sheet of O.S. No. 79/2013 came to be marked as Exs. P-9 & 10. Undisputedly, objector has not alleged any fraud against decree holder but on the other hand, it is his contention that judgment debtor without disclosing that ownership of property vests with the objector had pledged said property with the decree holder namely, State Bank of India and as such, judgment debtor has committed fraud. Records would indicate that objector has filed application in question after proclamation of sale was drawn up. On that ground itself application is to be held as not maintainable.

Be that as it may. Undisputedly, objector has filed a suit seeking for declaration in respect of some property in question in O.S. No. 79/2013. Court which is seized of the said suit will necessarily examine all contentions raised in this regard and also in view of the fact that much prior to the compromise entered into between objector and judgment debtor, property in question has also been secured by way of an equitable mortgage by depositing of title deed and as such, it cannot be said or objector cannot be heard to contend that judgment debtor was not the owner of property as on the date of creating mortgage. In that view of the matter also, application under Order 21 Rule 90 CPC was liable to be dismissed and as such, trial Court has rightly dismissed the said application. I do not find any merit in this revision petition. Accordingly, this petition stands dismissed. Parties to bear their respective costs.