Karnataka High Court
Kamamurthy Srinivas By Lr vs Srinivas on 23 February, 2024
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NC: 2024:KHC:7775
WP No. 51666 of 2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 23RD DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MRS JUSTICE M G UMA
WRIT PETITION NO. 51666 OF 2018 (GM-CPC)
BETWEEN:
KAMAMURTHY SRINIVAS BY LR
SMT. PARVATHAMMA
W/O LATE HANUMANTHAPPA
AGED ABOUT 81 YEARS
NO.14/1/105, ACHIKARI
VEERAPPA STREET
WEAVERS PET, RAYADURGA
ANANTHAPURA DISTRICT
A.P - 515 865
REP BY HER SON AND
GPA HOLDER, K. PRASAD
AGED ABOUT 48 YEARS
...PETITIONER
(BY SRI: .M.J. ALVA, ADVOCATE)
AND:
1. SRINIVAS
Digitally
signed by
MANJANNA S/O LATE S. VENKATARAMAIAH
MANJANNA E
E Date:
2024.03.04 AGED ABOUT 38 YEARS
11:31:05
+0530
NO.L-98, 12TH CROSS, 4TH MAIN,
LAKSHMINARAYANAPURAM,
BENGALURU - 560 021
2. SMT. V. NARASAMMA
D/O LATE S. VENKATARAMAIAH
AND W/O BYATARAYASWAMY,
AGED ABOUT 56 YEARS,
NO.14/1, SRI. MATHA PITHRU BHAVAN
20TH MAIN ROAD, JAYACHAMARAJA NAGAR,
PIPELINE KURUBARAHALLI, BENGALURU - 560 086
3. SMT. V. KAMALAMMA
D/O LATE S. VENKATARAMAIAH
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WP No. 51666 of 2018
AND W/O V. KRISHNAMURTHY,
AGED ABOUT 58 YEARS
NO.L-139, 11TH CROSS,
LAKSHMINARAYANAPURAM
BENGALURU - 560 021
4. M/S SRI VANI EDUCATION CENTRE
TRUST, REP BY ITS TRUSTEE,
R.H. SHARADA PRASAD,
AGED ABOUT 61 YEARS,
NO.1246/47, 4TH MAIN,
2ND STAGE, RAJAJINAGAR,
BENGALURU - 560 010
...RESPONDENTS
(BY SRI: S.G. BHAGAVAN, ADVOCATE FOR R1-3 (ABSENT)
SRI: B.R. VISHWANATH, ADVOCATE FOR R4)
THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE IMPUGNED
ORDER DTD:3.9.2018 PASSED BY THE LEARNED XIX ADL. CITY CIVIL
AND SESSIONS JUDGE, BEGALURU CCCH NO.18 IN EX.PET
NO.2276/2010 WHICH IS PRODUCED AS PER ANNEXURE-A.GRANT
COST OF THIS PETITION AND ETC.,
THIS WRIT PETITION, COMING ON FOR FINAL HEARING, THIS
DAY, THE COURT MADE THE FOLLOWING:
ORDER
The legal representative of the original plaintiff in
O.S.No.3585/2005 on the file of City Civil Judge, Bengaluru,
who is the decree holder in Execution Case No.2276/2010 is
seeking grant of, writ of certiorari to quash the order dated
03.09.2018 passed by the Executing Court allowing the
application filed by respondent No.4 under Order 21 Rule 58
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r/w Section 151 of CPC and releasing the subject property from
attachment.
2. Heard Sri. M.J.Alva, learned counsel for the
petitioner and Sri. S.G.Bhagavan, learned counsel for the
respondents.
3. Learned counsel for the petitioner submitted that
the petitioner is the legal representative of the original plaintiff
in O.S.No.3585/2005. The said suit was filed for recovery of
money on 10.05.2005. The subject property was described in
the schedule appended to the plaint. The suit was contested
and came to be decreed on 26.02.2010. A charge was created
on the schedule property by the trial Court by drawing the
decree to enable the decree-holder to realize the decreetal
amount by sale of the schedule property. For the purpose of
executing the decree, the petitioner filed Execution Case
No.2276/2010 on 23.09.2010. An order of attachment was
passed attaching the property in question on 17.07.2017. The
property was actually attached on 11.08.2017. However,
respondent No.4 appeared before the Executing Court and filed
the application under Order 21 Rule 58 R/w Section 151 of CPC
as an Objector, by contending that he is the bona fide
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purchaser of the schedule property under the sale deed dated
29.06.2011. The trial Court accepted the said contention and
allowed the application. It has released the property from
attachment. Being aggrieved by the same, the petitioner is
before this Court.
4. Learned counsel contended that when the property
in question was attached under the decree passed by the Civil
Court wherein it is specifically stated that the defendants are
liable to pay the decreetal amount which is to be realized from
sale of the schedule property left by the borrower-deceased
Venkataramaiah. Therefore, for all practical purposes when the
decree was passed on 26.02.2010, a charge was created on the
property and the defendants were not having any right to
create any encumbrance or third party interest over the same.
5. Learned counsel contended that as per Section 100
and 101 of the Transfer of Property Act, there cannot be any
subsequent encumbrance once the charge is created on the
property. He placed reliance on the decision of the Division
Bench of this Court in DR.ARVIND VS. SRI ANAND1 in
ILR 2010 KAR 5532
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support of his contention that when once the charge is created
on an immovable property as security for payment of the
money, all the provisions of the Transfer of Property Act which
are applicable to simple mortgage would apply and parties
therein would have their rights and obligations of a mortgager
or a mortgagee under the simple mortgage. He also placed
reliance of a decision of Hon'ble Supreme Court in 'M.L.ABDUL
JABBAR SAHIB VS. M.V.VENKATA SASTRI & SONS &
OTHERS'2 which is referred to by the Division Bench of this
Court in Dr.Arvind (supra).
6. Relying on these decisions, learned counsel for the
petitioner contended that there was a charge created on the
schedule property at the time of passing the decree i.e. on
26.2.2010 and therefore, the purchase of the property by
respondent No.4 under the sale deed dated 29.6.2011 would
not bind the decree-holder and therefore the Executing Court
has committed an error in passing the impugned order.
7. Learned counsel for the petitioner further submitted
that the property in question was described in the plaint and it
1969(1) SCC 573
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was requested to create charge over the property. Accordingly,
the trial Court created the charge while passing the judgment
and decree dated 26.02.2010. Under such circumstances, the
parties to the lis could not have alienated the property in favour
of respondent No.4. The trial Court ignoring all these facts and
circumstances, proceeded to pass the impugned order under
Order 21 Rule 58 R/w Section 151 of CPC. Therefore, he prays
for quashing the said order in the interest of justice.
8. Per contra, learned counsel for respondent No.4
opposing the petition submitted that initially Venkataramaiah
was the owner of the schedule property. But he released his
right over the property in favour of respondent No.2
Narasamma, who is his daughter. Narasamma in turn
bequeathed the property in favour of her husband
Byatarayaswamy under the Registered Gift Deed dated
23.07.2005. The release deed as well as the gift deed were
much prior to passing of the decree, as the release deed is
dated 07.04.2005 and gift deed is dated 23.07.2005. Under
such circumstances, even if the decree states that the charge is
created, the same would not bind the 3rd party to the lis who
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acquired title under the release deed and the gift deed
respectively.
9. Learned counsel submitted that respondent No.4 is
a stranger to the family and he is a bona fide purchaser of the
schedule property from Byatarayaswamy who was not a party
to the suit. Under such circumstances, the charge created
under the decree or the charge created by an order passed by
Executing Court will not bound the schedule property in any
manner. He has placed reliance on the decision of the Hon'ble
Apex Court in 'PAUL BROTHERS (TAILORING DIVISION)
AND OTHERS VS. ASHIM KUMAR MONDAL AND OTHERS'3
in support of his contention that the attachment effected
pursuant to the sale will not have any legal effect of
invalidating the creation of earlier interest of others subsisting
over the property. Therefore, he submits that the trial Court
was right in passing the order as the deceased borrower was
not having any subsisting right over the schedule property as
on the date of creating the charge under the decree. Under
such circumstances, there are no merits in the contention taken
by the petitioner.
(1990)3 SCC 726
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10. Learned counsel for the respondents further
submitted that respondent No.4 was not a party to the
litigation. He was the bonafide purchaser for value who
purchased the property under the registered sale deed from the
3rd party who was not the defendant before the trial Court.
There was no occasion for respondent No.4 to know about the
litigation in respect of the schedule property.
11. Learned counsel further submitted that to invoke
Section 52 of the Transfer of Property Act, the right to the
immovable property must be directly or specifically in question
and under such circumstances, the property cannot be
transferred or otherwise dealt with any other party to the suit.
In the present suit, it is only a money suit. Even though the
property is described in the schedule, it is never pleaded that
the property was inherited by the defendants and the same is
liable for recovery of the amount. The charge was created only
on 26.02.2010 when the suit was decreed. That too without
verifying the up to date revenue records to find out as to
whether any charge was already created or not. Under such
circumstances, the charge under Section 100 of Transfer of
Property act will not come into operation and it will not bind
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respondent No4. Therefore, he prays for dismissal of the
petition.
12. The undisputed facts of the case are that deceased
Venkataramaiah said to have borrowed certain some of money
from the plaintiff. Unfortunately, he died before repaying the
same. The suit OS.No.3585/2005 was came to be filed by the
plaintiff for recovery of the amount. It is stated that the
deceased Venkataramaiah was a business man. He was the
manufacturer and dealer of Silk fabrics and running a business
in the property described in the schedule. Of course the plaintiff
had not said that the property was owned by deceased
Venkataramaiah. However, in the prayer the plaintiff sought for
creation of charge over the schedule property for recovery of
decreetal amount. From the averment made in the plaint we
can presume that the property was owned by Venkataramaiah
and the same was left behind which was inherited by his legal
representatives. Respondent Nos.1 to 3 were defendant Nos.1
to 3 in the suit, being the son and daughters of deceased
Venkataramaiah.
13. It is pertinent to note that even though the plaintiff
has sought for creating a charge over the schedule property, he
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had not though fit to avail the benefit of Order 38 Rule 5 of
CPC, seeking creation of charge over the property before
judgment. But the charge was created while passing the decree
i.e., on 26.02.2010. It is pertinent to note that the plaintiff
produced Exs.P6 and 7 the property extracts belonging to
deceased Venkataramaiah. The copy of the judgment produced
for perusal of the Court discloses that none of the revenue
records as on the date of the decree were produced to verify as
to whether the charge was already created over the property in
question or not. The plaintiff was not diligent either in pleading
the facts or in placing the materials before the Court while
seeking charge over the property.
14. The materials on record also disclose that initially
on 07.04.2005, registered release deed was executed by
defendant No.1 in favour of defendant No.2. Later on
23.07.2005, the registered gift deed was executed by
defendant No.2 in favour of her husband, who in turn sold the
property in favour of respondent No.4 under the registered sale
deed. Of course the defendants have not referred either to the
release deed or to the gift deed when the suit was pending. If
the plaintiff was diligent, he could have noticed parting of the
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property by defendant No.1 by executing the registered release
deed in favour of defendant No2 on 07.04.2005, while filing the
suit on 10.05.2005 itself. Even if the plaintiff was more diligent
while prosecuting the suit, he could have verified the revenue
records and could have noticed execution of a registered gift
deed by defendant No.2 in favour of her husband. But even
when evidence was led, the plaintiff relied on the old revenue
extracts which were standing in the name of the deceased
Venkataramaiah. But he has not thought it fit to verify the
latest revenue records and to find out as to whether any third
party interest was created over the same. Even the trial Court
was not bothered to verify this fact calling upon the plaintiff to
produce the latest revenue records or the encumbrance
certificate and mechanically proceeded to create the charge
over the property. The fact remains that on the date when the
charge was created over the schedule property, the property
was not belonging to Venkataramaiah or to any of the
defendants. But it was transferred in favour of a third party,
even though he was the husband of defendant No.2.
15. Learned counsel for the respondent placed reliance
on the decision of the Apex Court in Paul Brothers (Tailoring
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Division) and others (supra). The Hon'ble Apex Court has
made it very clear that any sale transfer, encumbrance or
alienation subsequent to the attachment could not be impugned
but the attachment did not have the legal effect of invalidating
earlier interest of others subsisting in the property. When
prima-facie the 3rd party interest was already there, when the
charge was created by the trial Court in the judgment dated
26.02.2010, I am of the opinion that the same will not be
available to the plaintiff to contend that the charge was already
created by the Civil Court and the same binds respondent No.4
who was the subsequent purchaser to purchase from the 3rd
party under the registered sale deed dated 29.06.2011. Prima-
facie, respondent No.4 is a bonafide purchaser for value
without notice. The charge was created as per the order dated
26.02.2010 when the property was already parted by the
parties to the litigation. Therefore, I am of the opinion that it
will not have any effect to bind the transferor in who's favour
the interest was created much earlier. If the plaintiff was
diligent, such transfers could have been prevented at the
earliest point of time. The trial Court could have passed
necessary orders in that regard. But the plaintiff has lost such
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opportunity. Therefore, now the plaintiff cannot contend that
the property now owned by respondent no.4 is liable for
recovery of decreetal amount.
16. I have gone through the impugned order passed by
the trial Court. It has taken into consideration the fact that the
date of creation of the charge over the schedule property. The
property already changed hands and 3rd party interest was
already created and therefore, allowed the application filed by
respondent No.4 as an objector. I do not find any illegality in
the said order.
Hence, I proceed to pass the following.
ORDER
Writ petition is dismissed.
SD/-
JUDGE
BH
