Karnataka High Court
Dr K Satish Shetty S/O Raghunatha Shetty vs The Federal Bank Ltd on 4 November, 2009
Bench: N.Kumar, C.R.Kumaraswamy
E5"-!-,(..f.)"
4(a)
403)
4(c)
4(6)
.LEE'i;AvATHI
HAVING THEIR OFFICE AT SUVARNA
MAHAL, KATAPADI, UDUPI TALUK
REPRESENTED BY ITS PARTNER.
MAHESH SUVARNA
s/O LATE K MUDDU SUVARNA
HINDU, MAJOR, SUVARNA MAHALA
MOODABETTU VILLAGE,
UDUPI TALUK.
NARASA K JATHANNA
HINDU, SUVARNA MAHAL
MOODABETTU VILLAGE
UDUPI TALUK
SINCE DECEASED BY I .
SATHYAvAT;e1I',,N.E,:?JAf£ HANNA'. V ,
AGED ABOUT 5.8. Y'E'A.RS"'--A:,'fi'-- , "
JAYANTHI" , ,
AGED ABOUT,38Y.'I'E'ARS'a_'---., I
PADMAVATHI V , »-- _
AGEDABOUT 33.YE--ARs "
AGED A£sOu_T'~3I YEARS
4(e)1
}!E'F¥'E1?II!A'E}i%ivI.__
AGED As_OUTj 28 YEARS
I._NAvEE~M: JATHANNA
._AGED ABOUT 26 YEARS
*,"_'--..:RE4SPC)NDE'NT 4(a) IS THE WIFE AND
--RE.SPON§DENT 403) -- 4(f) ARE THE
' CHILDREN OF LATE NARASA K JATHANNA
ALL ARE RESIDNG AT NO.5*51
KAJAKADA, YENAGUDDE VILLAGE
POST, KATAPADI, UDUPI 574 105.
RESPONl;'ENTS.___:' : .__
(BY SRI. B R VISHWANATH, ADVOCATE FOR R1,
SRI. VYASA RAO K.S, ADVOCATE FOR R3,... A '
R2, R4(a) TO R4(f) ARE SERVED)
THIS RFA Is FILED UNDER S~E_CTIOf'a{ 96 OFOC"PCV'AGA'ENST
THE ORDER AND DECREE DATED'2,I-2.1997 I PA_SS,ED._:I'NMISC.
CASE NO.42/90 (EX. CASE No.79/'e.7') ON THEE-ILE',OF THE
ADDITIONL CIVIL JUDGE (_SR.DN,_).,_A'UD'U.PI, R'E3.ECTINc5 THE
PETITION FILED BY THE APPHCANT u'ND.ERt'ORDER 21 RULE 58
CPC TO RAISE THE A1TACHMENT.. r ' ..
THIS RFA COMING_UP ;FOR'§§f:EA'RI:i\f_(§ .1'7H.iS"'DAY, N. KUMAR
3., DELIVERED THE ;.FOI;tOwING;%
The is challenging the Order
passed byithe. rejecting his application filed
as not maintainabie.
F--(;:I)._-Eifi*:eV':"Vf§ff:4vVTespondent -» Federal Bank filed a Suit
AV.navg"a_inSt the R..espAO'hdentS 2, 3 and 4 for recovery Of a Sum of
After contest, the suit came to be
'The Suit was flied On 20.6.1979 and decreed On
1/"
14.2.1984. However in the suit plaintiff filed an application
under Order--38 RuIe--5 of CPC for attachm_e'ntf.j;befti:!%é=_
Judgment of ten items of properties which w.
in the said application. An ex parte
Temporary Injunction was granted on'V'22.8;V:i'9.i?~9.ttwhich--.i*
order was in force till the As the
decretal amount was notvpeid.,. an Execution
Case No.79/1987 and .sou§;'ht:'for ten items of
properties which" Sale notice
was ordered**a*nd'VyV.Athelbiipgropejftiesilwerefisold in public auction.
Before the applicant who had
purchased_secondV_"ite:rh schedule viz., land bearing
~rriea"sur'i'ngV 55 cents situated at Yeregadde
filed an application purported to be
jig?'-u'nder Orderf.2~ft_;'iRuie---58(1) of CPC and obtained stay of all
""'l.7f'a;i'rt_heryyprovceedings. He contended that though he
the property under the registered sale deed
'Vdated--~*}19.r-1.1980, he had entered into an agreement to
purchase the said property on 10.5.1979 under avggvfiritten
agreement of safe. The agreement of sale is _
order of attachment before judgment.
attachment is not effective and the
been brought to sale and --:aiso=b'
contended that 10 items of propVertVijes_ are atta<:hAed.vi§and the
first item of the propertyvwhich::§;,!uabie property
if sold wouid fetCiji4_t:i'i!3. eFi't"Vi'i"§. and hence
thesexecuting j..;,JVsv't'ifie;d.V.i'nWattaching ail' the
properties sa'§'e'.":V
(3) Theiisajid opposed by the decree
hoider. enquiry conducted. The Executing Court
foundi' _vtne--.r:naterial on record that the agreement of
safe set up by the applicant is a concocted
vi"documentforthheéiipurpose of the case. The said agreement
.:_o.fjsaji_eiwasA not produced. Executant of that agreement was
V' ".iéo_t"examined. There is no reference to the agreement in
Vsiftctheifgcorrespondence and therefore it heid the said
i/"
agreement is created only for the purpose of this caseand
if that agreement is excludedgas the sale has _
19.4.1980 after the attachment of the prope.rt--*,'..:..:'jthefsalgeis w
void and the decree holder is entitled toi'.proicee'd--.witjh.__ti3eA
execution petition, sell the ip_r'apert9y-..'and *vreAC;ov.eVr theui"
decretal amount.
(4) Aggrieved by the s_ai'dA._o.rdeifI o~f~.ftv'hA§'%é._'ivE':'<ecuting Court
which is deemed 'a First Appeal is
filed.
(5) the learned senior counsel
appearing forlithe"appeli--.an't":assailing the Judgment and
Dfécree ;;.hQ.._ztrial"'€o'urt contends on 10.5.1979 the
propertfiiraii guiestlion'_j.was taken possession by the applicant,
Viv.vV:"'*~wlhere lie up a Petrol Bunk. in other words
_.i.il'.;'pgoi':.__s'esAsigon .'v-zas delivered prior to the order of attachment.
""f"-»._':'Th'e."a§re.ement of sale is also prior to the order of
Vatta"chi*'nent. The correspondence shows there was such
i//t
agreement. In that view of the matter, the Executingtfjourt
committed a serious error in rejecting the agree_rh'en.t_~dja'ted'i _
10.5.1979 and in holding that the saie
applicant is void. Per contra, the iea:r4nedi.cou'n.s'e-ll 'appe'a..ri'ng
for the respondent supported the irnpugnexd ord'e'r...[i'v.t_....
(6) From the aforesai:d~~..factsmand..firii/ai. contvelntions, the point that arises for consideVra'tiAonl'.'i_s:1' of the applicant on 19.4.__198(l""is.:;.yoid_j"a.nd"h.e_i_s5entitled to seek for rai<.sing_ .ofthe.V_atta'ch'm_ent." I (7) Factsu'la«re'~hVot._ in.i_'ois'pute. The suit was filed for recovery.':g_jof {honey anr2e~.5.1979. On 22.8.1979 an order judgment was passed attaching 10 :7:f--i.tems of vp.ro:;:};seirties. The second item of the attached *4--l«pro_pe.rty wasgpurchased by the applicant under a registered ion 19.4.1980. It is the case of the applicant that item was put in possession of the applicant under an agreement of sale on 10.531979. The trial Cogurtiihas disbelieved the said agreement. Even if there agreement dated 10.5.1979, in law it makes~no.:'jd.iffe:re:jce'. A contract for sale of the immovable'prop.erty_is.'a" coi'it_ras?_i;' to the effect that sale of such pre..perty'-shall ta'i{e._'vp.l.aVce terms settled between the partiye'sV.A'»v:__ doe's.:nAotElof itself create any interest in V property.
Therefore on the _:da__te contract on 10.5.1979 the interest in or charge on i's"'t'h'e"}subject matter of the agreement an interest oniy after a registeredV_svalexldeedcarne:be executed in his favour on CPC states where an attachment private transfer or delivery of the :7fjiproperty»..__Vatt_ac'hvie.din or of any interest therein and any to the judgment-debtor of any debt, dividend or ""'V.'."-flother *.rnon..i'es contrary to such attachment, shall be void as ag:ai"n»stiV all claims enforceable under the attachment. Therefore in the first instance the agreementytdated 10.5.1979 did not create any interest in or property in favour of the applicantmm >The deed dated 19.4.1980 is a private judgment debtor in favour cifu'4--..t.heV'9a.pVp!i.c_an:tA attachment and therefore it ..'"fh.eyref§ore the Executing Court committédiifhno__viVi:--ieo'a'i\i't_y,:.in hoiding that there is no wrongfu4I_:attachment property in execution of has no right to seek The said order passed is iiegaif do not suffer from any infirmity, vvhichffcalxis iAr:.t'e'rference. Viy(8j i.mustynogz/2006 is filed for production of the if.9':"a'dditionAa..iy__Vev_i.d~en:ce under Order~41 RuIe--27 CPC. We have '"*'§.o%ne""throu§h..ithe document. That document shows that V.9"-if}._'V"aAn""aoreement of sale dated 10.5.1979 had been sent to the 'Inr'_1uian*:C)il Corporation. In the view we have taken, the \i/ 10 said document and its contents makes no differevnc_e"'iand therefore we do not see any justification No.2/2006. Accordingly LA. No.2H[v2O06_~"Focf~_»additiona!'* evidence is rejected.
(9) It is submitted at thejV t:i'iinervof of this appeal whiie granting of stay of dispossession, this 'Court to pay the entire ifggidiiiiamount has been deposited "--.'.1'f:.vth'e'appfieflant by such deposit has fully amount, the execution petition has entering fuii satisfaction. ah/.vays"o*pen to the applicant/appellant who which was payable by the judgment :Av'.r4...,,5i'ebtor,"to against the judgment debtor in a .._.ig::g~.'ar__i'rii=:r known' to law.