M.Armugam vs Umadevi & Others

V. Gopala Krishna Rao, J

Aggrieved by the order and decree dated 14-9-2005 passed in E.A.No.449 of 2004 in E.P.No.191 of 2003 in O.S.No.66 of 2001 on the file of Senior Civil Judge’s Court, Gudur, SPSR Nellore District, the present appeal is filed.

The respondents herein are the respondents in the said application filed by the appellant/claimant before the trial Court.

Both the parties in the appeal will be referred to as they are arrayed before the trial Court.

The case of the appellant before the trial Court is as follows:

The 2nd respondent borrowed a loan of Rs.2,00,000/- from the petitioner on 13-04-2002 and executed a demand promissory note on the even date agreeing the repay the same with interest at 24% per annum and still the debt is outstanding. While so, the petitioner came to know that the petition schedule property was brought to sale after attachment by the 1st respondent/decree-holder basing on a money decree passed by the trial Court. There is no other source for the petitioner to recover his debt except the petition schedule property.

The 1st respondent filed a counter before the trial Court with a specific plea that no decree was obtained by the appellant herein against the 2nd respondent and no suit was filed by the petitioner in a competent Court and the property was not at all attached before the trial Court and he further contended that he obtained a mortgage decree against the schedule property.

Admittedly, the other respondents did not choose to file any counter.

No oral or documentary evidence is adduced on either side.

Heard Sri S.V. Muni Reddy, learned counsel for the appellant. None for respondents.

Now, the points for determination are:

(1) Whether the order of the trial Court needs any interference? and

(2) To what extent?

Point No.1:-Whether the order of the trial Court needs any interference ?

The material on record reveals that the 1st respondent/decree-holder obtained a mortgage decree from the trial Court against the judgment debtors i.e. respondents 2 and 3, the same is not at all in dispute. The bald allegation taken by the appellant herein is that the 2nd respondent borrowed an amount of Rs.2,00,000/- from the appellant on 13-4-2002 and executed a demand promissory note on the even date agreeing to repay the same with interest at 24% per annum. The fact remains that till so far, no suit is instituted by the appellant herein against the 2ndrespondent. It is not in dispute by both sides that the petition schedule property is exclusively belongs to the 3rd respondent/2nd judgment debtor.

The contention of the appellant herein is that the 1st judgment debtor i.e. the 2nd respondent borrowed a sum of Rs.2,00,000/- under a promissory note dated 13-4-2002 and failed to repay the same. As stated supra, no suit is instituted by the appellant till so far against the 2nd respondent. It is an admitted fact by both sides that the petition schedule property belongs to the 2ndjudgment debtor. Admittedly, the appellant has not filed any suit against the 1st judgment debtor nor obtained any decree against him and got attached the petition schedule property. For the reasons best known to the appellant, to prove the said promissory note transaction, at least copy of promissory note is not at all filed by the appellant herein. The law is well settled that without obtaining any money decree by a third party and without obtaining any attachment on the properties of the judgment debtor, the alleged moneylender in some other transaction has no right to claim that he has got a right, title and interest in the properties of the 1st judgment debtor. In fact, the appellant failed to prove that he lent an amount of Rs.2,00,000/- to the 1st judgment debtor i.e. the 2nd respondent herein. As stated supra, the petition schedule property is exclusive property belongs to the 2nd judgment debtor i.e. the 3rd respondent herein and the same was mortgaged to the decree-holder, but the 2ndrespondent failed to discharge the decree debt and the decree-holder brought the schedule property for sale. At this stage, to defeat the rights of the decree-holder purposefully, the appellant herein filed the present application before the trial Court. Order XXI, Rule 58 (2) of CPC makes it clear that all questions including the right, title or interest in the property attached can be decided by the Court. Admittedly, in this case, no such right was created in favour of the appellant herein by the judgment debtors. If really the promissory note is proved, at best the appellant can recover the amount from the 1st judgment debtor by filing a suit. It is not the case of the appellant that the 1st judgment debtor has no other properties of his own. The material on record clearly reveals that to defeat the rights of the decree-holder, the appellant herein purposefully filed the claim application before the trial Court. On appreciation of the entire material on record, the trial Court rightly dismissed the application filed by the appellant before the trial Court. I do not find any illegality in the order passed by the trial Court and the order passed by the trial Court is perfectly sustainable under law and it requires no interference.

12.Point No.2:-To what extent ?

In the result, the appeal is dismissed confirming the impugned order and decree passed by the trial Court. Pending applications, if any, shall stand closed. No costs.