IN THE HIGH COURT OF JUDICIATURE, ANDHRA PRADESH, AT
HYDERABAD
THE
HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU
SECOND
APPEAL No.854 OF 2010
JUDGMENT
The
claim petitioner is the appellant. The
first respondent/decree holder filed suit for recovery of money against the
respondents 2 and 3/judgment debtors (JDRs) and obtained attachment before
judgment of the property on 18.4.2002. In execution of decree obtained in
O.S.No.11 of 2002, the decree holder (DHR) filed EP No.24 of 2005 for sale of
attached property. When the execution proceedings were going on before the
Executing Court, the appellant filed claim petition in E.A.No.37 of 2006 before
the Executing Court claiming that he has got right, title as well as possession
in the attached property; and seeking raising of attachment.
It is
contention of the appellant that the first JDR obtained loan of Rs.90,000/-
from her and executed Ex.A1 mortgage deed with condition of sale dated
22.1.2001 on the basis of which she obtained award from Lok Adalat on
18.1.2006, in pursuance of which award, the first judgment debtor executed
Ex.A3 registered sale deed dated 20.11.2006 for the same property in her
favour. Ex.A2 Lok Adalat award dated 18.1.2006 and Ex.A3 registered sale deed
20.11.2006 are long subsequent to order of attachment before judgment dated
18.4.2002. Therefore, Exs.A2 and A3 cannot have any effect on the
attachment in this case. Then it remains to be seen as to the effect of Ex.A1
on the attachment. Ex.A1 is stated to be a mortgage deed with conditional sale.
Basic rule of a mortgage is that “once a mortgage always a mortgage”. Further,
there is no proper proof of Ex.A1 which is styled as a mortgage deed, by
examining one of the attestors therein in accordance with Section 68 of the
Evidence Act. Ex.A1 mortgage deed is also invalid and ineffective in as much as
it is neither properly stamped nor registered. Existence
of a document like Ex.A1 was never disclosed by the first judgment debtor at
any time prior to filing of the claim petition in the year 2006.
The
claim petitioner as PW1 also could not give particulars of Ex.A1 in her evidence. Place
of Ex.A1 is not mentioned. PW1
could not give survey number of the property. She
does not know who was scribe of Ex.A1. After Ex.A1, there was no exchange of
notices between the parties for repayment of the alleged loan or for execution
of sale deed in pursuance of it. Possession
of the land is stated to have been delivered to the claim petitioner only on
the date of Ex.A3 sale deed in the year 2006. All these circumstances further
disclose that Ex.A1 was only a collusive one between the first judgment debtor
and the claim petitioner and was brought into existence for the purpose of
defeating rights of the decree holder under
the attachment. In the circumstances, the Courts below rightly came to
the conclusion that attachment of the property is not liable to be raised. I
see no error much less error in law committed by the Courts below.
In the
result, the second appeal is dismissed with costs.
Miscellaneous
petitions pending, if any, shall stand dismissed.
__________________________________
JUSTICE SAMUDRALA
GOVINDARAJULU
Dt.16.11.2012
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