Punjab-Haryana High Court
Surinder Pal Alias Surinder Singh vs Balwinder Singh on 26 February, 2009
Equivalent citations: AIR 2009 (NOC) 2294 (P&H)
R.S.A. No. 965 of 2006 (O&M)
-1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
R.S.A. No. 965 of 2006 (O&M)
Date of decision: 26.02.2009
Surinder Pal alias Surinder Singh
....Appellant
Versus
Balwinder Singh
....Respondent
CORAM: HON'BLE MR. JUSTICE VINOD K. SHARMA
Present: Mr. Karamvir Singh, Advocate,
for the appellant.
Mr. Satinder Khanna, Advocate,
for the respondent.
*****
VINOD K. SHARMA, J (ORAL)
This regular second appeal is directed against the judgments and decree dated 3.12.2004 and 25.11.2005 passed by the learned Courts below vide which the suit filed by the plaintiff/respondent for recovery of amount stands decreed.
The suit was brought by the plaintiff for recovery of Rs.3,66,000/- along with interest @ 1.5% per month by sale of mortgaged house measuring 6 marlas, fully detailed in the head-note of the plaint. The plaintiff claimed that the defendant/appellant had taken a loan of Rs. 3 lacs for his personal expenses, and as security for repayment, mortgaged his house in favour of the plaintiff/respondent. R.S.A. No. 965 of 2006 (O&M) -2-
The defendant/appellant further agreed to pay back the loan amount and also monthly interest till the amount was cleared.
The appellant/defendant paid the interest for one month and thereafter he did not pay the amount, thus, amount of Rs.66,000/- was claimed towards interest on principal amount.
The suit was contested on the plea of estoppel, and also on the ground that the plaintiff had not come to Court with clean hands. The plea of non-joinder and mis-joinder of parties was also raised, besides challenging the jurisdiction and Court fee.
On merits, the defendant/appellant denied having received any loan. Mortgage was also denied.
On the pleadings of the parties, the learned trial Court framed the following issues: -
"1. Whether the plaintiff is entitled to recover the suit amount with interest, if so at what rate? OPP
2. Whether defendant has executed the mortgage deed dated 20.12.2000 in favour of the plaintiff? OPP
3. Relief."
On appreciation of evidence, the learned Courts below have recorded a concurrent finding of fact that the plaintiff was entitled to recover the said amount with interest. A finding was also recorded that defendant had executed mortgage deed Ex. P-1 as security for the loan.
The learned counsel appearing on behalf of the appellant challenges the judgments and decree by claiming following substantial question of law:
"Whether the only residential house of the R.S.A. No. 965 of 2006 (O&M) -3- defendant/appellant could be attached and sold for execution of the decree passed in favour of the plaintiff?"
In support of the contention, the learned counsel for the appellant contends that the appellant/defendant is merely a labourer, and has only one residential house, therefore, the same stands protected, from attachment under Section 60 CPC. The judgment and decree ordering recovery by sale of house belonging to the defendant/appellant could not be sustained.
The plea of the learned counsel for the appellant is mis- conceived. The suit was filed for recovery by sale of mortgaged property. Once, the property was mortgaged as security against the loan, then the provisions of Section 60 CPC cannot be invoked to reverse the findings of learned Courts below which are in consonance with law.
The substantial question of law, framed, is answered against the appellant.
No merit.
Dismissed in limine.
(Vinod K. Sharma) Judge February 26, 2009 R.S.