Telangana High Court
S. Rajeshwar Rao vs Jayasheelan Raj on 26 December, 2022
Bench: P.Sree Sudha
THE HONOURABLE SMT. JUSTICE P.SREE SUDHA
APPEAL SUIT No.453 of 2006
JUDGMENT:
This appeal is filed against the order of the trial Court in
E.A.No.42 of 2004 in E.P.No.85 of 2003 in O.S.No.8 of 2002
dated 15.04.2006.
2. Petitioner is the third party. He filed an application under
Order 21 rule 58 of C.P.C to raise the attachment with regard to
house bearing Door No.9 - 113 situated at Teachers colony,
Dasnapur, Adilabad District. The trial Court considering the
arguments of both sides and the citations filed before the Court
dismissed the application. Aggrieved by the same, present
appeal is preferred. Appellant mainly contended that trial Court
without considering Exs.A1 to A9 which are receipts filed by
him and also without considering evidence of P.W.2 attesting
witness dismissed the application on the ground that agreement
of sale is not filed by him and it is erroneous. He is the bonafide
purchaser for consideration and he was inducted into the
possession of the suit schedule property but he was compelled
to suffer for no fault of him. Therefore, requested the Court to
set aside the order of the trial Court.
3. Heard arguments of both sides and perusal of record
shows that the petitioner herein entered into an agreement of
sale with the first respondent on 26.09.2001 for sale
consideration of Rs.4,00,000/-. In fact, first respondent
borrowed loan from State Bank of Hyderabad (hereinafter
referred as 'SBH') for construction of house and created
equitable mortgage in favour of SBH by depositing his title deed.
The first respondent constructed house bearing Door No.9-113
and sold away the same to the petitioner on 26.09.2001 under
agreement of sale. As per agreement of sale petitioner paid
Rs.60,000/- on the date of agreement of sale and out of balance
amount Rs.3,36,000/- is paid to the SBH towards outstanding
loan of first respondent and balance amount of Rs.4,000/- was
paid at the time of registration of the sale deed. The amount
paid by the petitioner is tabled as follows:
Date Amount Amount paid to
26.09.2001 60,000/- Respondent No.1
05.12.2001 2,000/- Respondent No.1
21.01.2002 1,24,000/- S.B.H
06.03.2002 6,000/- S.B.H
09.03.2002 3,000/- S.B.H
13.03.2002 5,000/- S.B.H
09.05.2002 2,000/- Respondent No.1
TOTAL Rs.2,02,000/-
4. He also invested Rs.1,00,000/- towards development of
the house. After 15 days respondent No.2 approached him and
informed that decree was passed against respondent No.1 and
asked the petitioner to vacate the house. As he is the bonafide
purchaser respondent No.1 has no right to attach the property.
Respondent No.1 set ex-parte and respondent No.2 filed
Counter stating that prior to the decree a publication was made
seeking objections, but the petitioner has not filed any
application when the suit was pending. The petitioner has to see
the clear title of the house before entering into agreement of sale
as such requested the Court to dismiss the application.
5. There is no dispute regarding loan taken by the
respondent No.1 from the SBH and E.A.No.5 of 2004 was filed
by the SBH for raising attachment stating that they got charge
over the property. The petitioner was examined under P.W.1,
but he has not filed agreement of sale before the Court and he
stated that he could not pay the stamp duty and penalty of
Rs.2,50,000/-, as such willfully and voluntarily he has not filed
it before the Court. The trial Court observed that as per Ex.A1
to A4 and A9 which are receipts filed before the Court petitioner
paid the amount to the loan account of the respondent No.1,
but mere payment of amount by the petitioner to the bank
basing on the receipts cannot prove the title over the property,
as he failed to file the agreement of sale dismissed the suit. The
petitioner ought to have filed suit for specific performance but
he failed to do so and he paid Rs.2,02,000/-. After entering into
agreement of sale, the respondent No.2 stated that they gave
publication and called for objections but the petitioner has not
filed any objection during the pendency of suit. O.S.No.8 of
2002 is filed by respondent No.2 against respondent No.1 for
recovery of amount basing on the promissory note, as it was
decreed in favour of respondent No.2 they filed Execution
Petition for attachment of the property. This clearly shows that
respondent No.1 obtained loan from SBH on 01.11.1997 and
mortgaged the property with the Bank and the petitioner
knowing very well about the mortgage of the property entered
into an agreement of sale, therefore it cannot be said that he
has no knowledge about the loan of the Bank when he entered
into an agreement of sale. As the agreement of sale is not filed
before the Court, the Court cannot verify whether there was any
time limit for payment of amount and other required details. As
this application is filed only to raise the attachment of the house
bearing Door No.9 - 113 situated at Teachers colony, Dasnapur,
Adilabad District and the said property was attached by the
Bank duly after getting decree and after filing of the Execution
Petition, as the petitioner is the third party to the proceedings
he is not entitled for raising the attachment. The trial Court
rightly passed the order by considering all the factors and thus
this Court finds no reason to interfere with the order of the trial
Court.
In the result, appeal is dismissed confirming the order of
the trial Court in E.A.No.42 of 2004 in E.P.No.85 of 2003 in
O.S.No.8 of 2002 dated 15.04.2006. There shall be no order as
to costs.
Miscellaneous petitions pending, if any, shall stand
closed.
_________________________
JUSTICE P.SREE SUDHA
DATED: 26 .12.2022
tri
THE HONOURABLE SMT. JUSTICE P.SREE SUDHA
APPEAL SUIT No.453 of 2006
DATED: 26.12.2022
TRI
