Smt. Munichinnamma vs State Bank of Mysore and another

M.F. Saldanha, J.—Heard learned counsel who represents the petitioner as also learned counsel who represents the bank and the contesting respondents. Undoubtedly, this civil revision petition throws up a set of facts that are very distressing. The petitioner''s learned advocate points out to the court that she is an illiterate agriculturist and that in the year 1989, the respondent-bank pursuant to certain execution proceedings in relation to a decree in O.S. No. 202 of 1975 attached the properties consisting of Survey No. 41/1 measuring 3 acres and 14 guntas. Learned counsel points out that the petitioner was not a party to the O.S. No. 202 of 1975 and that, therefore, she had absolutely nothing to do with that decree. He points out that on the basis of the record that the execution pursuant to which the property was attached and sold was in relation to the decree passed in O.S. No. 202 of 1975 and that, therefore, the entire action was void in law. He further submits that when the petitioner approached the trial court by way of an application u/s 47 for undoing the entire damage that had taken place, the respondents who vehemently contested the proceeding and defended their action, were successful in persuading the court that the wrong execution which was in relation to a decree passed in a original proceeding in which the petitioner was not a party was a mere irregularity and that, therefore, it should be allowed to stand. The petitioner''s learned counsel submits that the trial court is grossly in error in having taken this view because it is his submission that the action is wholly and totally indefensible. Learned counsel demonstrated, on the basis of the record, that even as of today there is no dispute about the fact that the petitioner had nothing to do with O.S. No. 202 of 1975 to which proceeding she was a total stranger. In sum and substance, therefore, he submitted that her property was attached against a decree passed against some other person and the further submission made at the Bar was that the value of the property far exceeded the sum of Rs. 10,200 which is the value of the property realised by the court and that the petitioner has lost a valuable property and that she is seriously and severally prejudiced thereby. He, therefore, submitted that interference is called for by this court and that the order passed by the trial court be revised and that the reliefs asked for by the petitioner, namely, that the execution be declared as null and void be granted.

The petition has been seriously contested by two parties the first of whom is the auction purchaser who contends that he had purchased the property in good faith and he submits that this is not a case in which any interference is called for. It is his contention that the amount paid for by him was fair and reasonable having regard to the prevailing prices at that point of time and learned counsel has supported his contention by producing a certified copy of another transaction in relation to similarly situated land and measuring approximately 1 acre and 4 guntas which was sold for Rs. 1,500 to him by this very petitioner. His submission, therefore, is that merely because the value of the land has appreciated and more so because he spent a lot of money making improvements, this is an attempt to secure some more benefit from him. He has opposed interference by this court.

The main opposition has come from the bank and learned counsel conceded that there was an error on paper when the execution was applied for but his contention is that this would not make any difference to what has happened. Learned counsel points out that the petitioner was a debtor vis-a-vis the bank and that after exhausting all remedies the bank was required to file two suits in which two decrees were passed, one in O.S. No. 433 of 1973 and the second in O.S. No. 28 of 1975. Learned counsel further points out that the bank had taken out execution proceedings in relation to these two decrees and he submits that it is true that the bank had also put a decree in O.S. No. 203 of 1975 into execution. His submission is that there was an error committed as far as the mention of the decree was concerned and that due to the mix-up the wrong number has appeared. Basically what is contended is that there were two decrees which were put into execution against this very petitioner and that consequently her property was liable to be attached and sold which was in fact done. He also demonstrated that out of the amount realised the court after scrutinising the bank''s case has paid over the amount of Rs. 10,200 to the bank in satisfaction of the two decrees. What is contended, therefore, is that irrespective of the wrong description, i.e., O.S. No. 203 of 1975, the court must uphold the position that the two other decrees were still liable to be executed and that the amount realised from the sale of the petitioner''s property has rightfully been adjusted.

The learned trial judge after hearing the parties upheld the contention canvassed on behalf of the respondents that as far as the execution was concerned, it was neither illegal nor void and that at the very highest there were certain procedural irregularities which are curable. Under normal circumstances, I would have upheld the submissions canvassed on behalf of the petitioner which are to the effect that her property could not have either been attached or sold in execution of a decree in relation to a proceeding which did not concern her. The action would have been wholly and completely indefensible and this court would have had no hesitation in quashing the execution. The existence of the two decrees, which is not disputed, makes all the difference, more so because these two decrees were also put into execution at the same point of time. Under normal circumstances this court will have to take the view that even in the absence of the attachment and sale in relation to the decree in O.S. No. 203 of 1975 the same result would have ensued had the decree in O.S. No. 433 of 1973 or O.S. No. 28 of 1975 been executed. The difference, therefore, pales into insignificance and becomes academic because as indicated by me the fact that the bank possessed two decrees and was in the process of executing them makes all the difference and to my mind the minor error or irregularity in the description at the time of execution when the petitioner''s property was attached would not assist the petitioner at all.

The petitioner''s learned counsel has submitted that the petitioner is a poor agriculturist, that she is an illiterate person and that she was not in the know of any of these transactions. It is his case that the petitioner''s husband was in collusion with the auction purchaser and that even the bank transactions and loans were at his instance. He states that the petitioner had only lent her name to the transactions but that she did not know anything beyond this. He further submits that it was only after she was forcibly dispossessed of the property, that she collected the various documents and applied to the court. The fact that the possession was delivered on February 10, 1989, and that it was only in November of that year that the application u/s 47 was filed before the court makes a world of difference even assuming everything that the petitioner''s learned advocate has stated is correct. It is inconceivable that the petitioner would have kept quiet if her lands were unjustifiably taken away from her and sold.

There is one last aspect of the matter, namely, the fact that, as indicated by me, the bank had already sought execution in relation to the two decrees. Had the petitioner moved the trial court and even assuming the trial court had set aside the earlier transaction, the same result would have ensued immediately thereafter and to my mind, therefore, the entire challenge is totally and completely academic.

Regardless of the distressing nature of the case, this court would be precluded from interfering on these special set of facts because, to my mind, even if there has been a minor irregularity as far as the execution is concerned, no substantial injustice or failure of justice has occurred. In this view, the revision fails and stands disposed of. There shall be no order as to costs.