Jagdishprasad S/O Chandanlal ... vs State Bank Of India, Thr. Branch ...
2022 Latest Caselaw 11251 Bom

                                                         1                           17.WP.6691-2022.odt




               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                         NAGPUR BENCH AT NAGPUR

                            WRIT PETITION NO. 6691 OF 2022
                  ( Jagdishprasad S/o Chandanlal Jaiswal
                                      Vs.
      State Bank of India, Thr. Its Branch Manager, Wardhaman Nagar,
                              Nagpur & Ors. )

Office Notes, Office Memoranda                           Court's or Judge's orders
of Coram, Appearances, Court's
orders     or    directions and
Registrar's orders


                                  Mr. Raju Kadu, Advocate for the Petitioner.



                                  CORAM:        AVINASH G. GHAROTE, J.

DATED : 21st OCTOBER, 2022.

Heard Mr. Kadu, learned counsel for the petitioner.

2. The petition challenges the order dated 26.09.2013 passed below Exh. 23, by which, the application for grant of permanent injunction (page 89), has been allowed subject to the condition of the defendant No. 3 depositing a sum of Rs. 6,00,000/- (Rs. Six Lakhs) as security for the claim of plaintiff/Bank within one month and the Bank was prohibited from dispossessing the defendant No. 3 from the suit flat, till the decision of the dispute, subject to the deposit. This order is dated 26.09.2013. An appeal came to be filed challenging the order before the learned Appellate Court vide Misc. Civil Appeal No.303/2015, which has been dismissed by the judgment dated 23.09.2022 (page 118).

2 17.WP.6691-2022.odt

3. Mr. Kadu, learned counsel for the petitioner submits, that since the defendant No.3 is a bonafide purchaser of the suit property, it is not his responsibility to make any payment, and therefore, the impugned order of the learned Trial Court and the judgment of the learned Appellate Court, cannot be sustained. I am afraid, I am unable to agree with this contention for the reason, that the suit property is mortgage to the plaintiff/Bank on 31.01.2005 for recovery of which the suit has been initiated by the Bank. The sale deed in favour of the defendant No. 3 is dated 02.04.2008 which is consequent to the mortgage, and therefore, does not create any legal right of the defendant No.3/petitioner, in precedence to the mortgage. The learned Trial Court, by the order dated 26.09.2013, therefore was not wrong in prohibiting the plaintiff/Bank from dispossessing the defendant No.3, subject to the deposit of Rs. 6,00,000/- (Rs. Six Lakhs). Today also, I enquired with Mr. Kadu, learned counsel for the petitioner, whether the condition is intended to be fulfilled, to which he has replied in the negative, considering which, I do not see any merit in the petition.

4. The Petition is therefore dismissed. No costs.

JUDGE SD. Bhimte Signed By:SHRIKANT DAMODHAR BHIMTE

Signing Date:21.10.2022 18:03