Civil Revision No.4181 of 2007 : 1 : IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No.4181 of 2007 Date of Decision: February 05, 2008 Mamta Loomba ...Petitioner VERSUS Life Insurance Corporation of India & another ...Respondents CORAM: HON'BLE MR.JUSTICE RANJIT SINGH 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? Present: Mr.Arun Nehra, Advocate, for the petitioner. ***** RANJIT SINGH, J. The petitioners filed objections under Order 21 Rule 58 CPC before the Executing Court, which are dismissed by Civil Judge (Junior Division), Patiala. Appeal against the same order has also been dismissed by Addl.District Judge, Patiala. Through the present revision petition, the petitioner has impugned the said two orders. The facts, in brief, are that the petitioner is stated to be Civil Revision No.4181 of 2007 : 2 : owner of a house constructed on land measuring 300 square yards in Tripari, Patiala. She allegedly purchased land measuring 92 square yards adjoining to her house from one Jang Singh son of Chanan Singh vide sale deed dated 14.8.1996. Jang Singh, in turn, had purchased the said land from Paramjit Singh (Judgment debtor) vide sale deed dated 23.10.1992. The case of the petitioner is that before purchasing this land, she made all enquiries from the revenue record and concerned authorities and purchased the same when found that there was no encumbrance on the land in question. In fact Paramjit Singh, original owner of this piece of land, had mortgaged the land in question with Life Insurance Corporation of India (for short “LIC”) as a security to the loan which perhaps he had obtained from the LIC. LIC filed a suit against Paramjit Singh, which was decreed. The decree-holder/LIC filed execution proceedings before the Executing Court, Patiala for recovery of the amount due. The Executing Court issued warrant of sale for the property in question. This is how, the petitioner states that she came to know about this charge on the property during November, 2005. She accordingly filed objections dated 10.12.2005 before the Executing Court. In the objection petition, the petitioner had disclosed the background as afore-mentioned regarding the fact that she had purchased this property from Jang Singh, who in turn, had earlier got it from Paramjit Singh (Judgment debtor). On a notice being issued on this objection petition, decree-holder has filed reply. It is disclosed that the property in question was mortgaged with the decree-holder by the original owner Paramjit Singh and accordingly it is pleaded that the property in the hand of petitioner would be subject to the Civil Revision No.4181 of 2007 : 3 : charge thereon, i.e., mortgage. The decree-holder would further disclose that the husband of the petitioner did not allow anybody to bid for the property in the process of auction, which was held on 29.11.2005. Plea is that Paramjit Singh had no right to sell the property which was under mortgage. The Appellate Court found it as a fact that warrant of attachment was issued on 25.7.2000, which was received with the report that the owner of the house so attached, i.e., Shri Ashok Kumar, was not present and his wife (present petitioner) stated to the Bailiff that the said property of Paramjit Singh has been purchased by them and thus they are now the owners of the same. It is, thus, noticed that the petitioner came to know of the charge on the property on 25.7.2000, whereas in the objection petition it is alleged that she learnt about this fact in November, 2005 and then filed this objection petition on 10.12.2005. It is noticed that the petitioner has not come to the court with clean hands. It is seen that the objections have been filed with delay which is substantial and has also remained un-explained. The petitioner has not been able to justify her action in keeping quiet to contest the execution about which she came to learn in July, 2000. Even the report of the auctioneer which is dated 22.4.2004 would show that the petitioner had told the auctioneer that she had purchased the house from Jang Singh, who had in turn, purchased the same from Paramjit Singh. Thus, the petitioner was well aware of the pendency of the execution, but still did not choose to file the objections till the time she did so. Mr.Arun Nehra, the learned counsel appearing for the petitioner, has challenged the findings returned by the courts and also the action of the courts in non-suiting the petitioner by relying on Civil Revision No.4181 of 2007 : 4 : the ratio of law laid down in Surinder Kaur Vs. Union Territory, Chandigarh, 2000 (3) Civil Court Cases 254 (P&H). The contention of Mr.Nehra is that this judgment is not applicable to the facts of the present case and has wrongly been applied by the courts below. He would refer to the observations made by this court in the case of Surinder Kaur (supra), as contained in paras 15 and 16 of the judgment. It is observed that there is no provision in law which would show that a property under mortgage cannot be sold. No doubt, in this case it has been observed by the court that the property under mortgage can be sold. At the same time, in the case of Surinder Kaur (supra), purchaser had undertaken the liability to discharge the mortgage. It is also observed by this court that the attachment will not nullify the sale or that the attachment does not prevent an owner from selling the property. However, it is also observed that the sale of a property is subject to the rights of a decree-holder and if the property under attachment is subject matter of sale, the sale will be subject to the rights of the decree-holder. Even otherwise, these comments came to be made in a different context of the submissions made before the court that the property being under mortgage or under attachment at the time of sale, the sale deed would not convey any valid title. The courts in this case are justified in relying upon the observations made in the case of Surinder Kaur (supra), which is to the effect that the sale of the property is subject to the right of a decree-holder. The Courts are further justified in observing that if the petitioner has purchased a property which is under mortgage, then she will step into the shoes of a mortgagor and would be liable to Civil Revision No.4181 of 2007 : 5 : discharge the liability arising from the mortgaged amount. Mr.Nehra would then refer to the case of Punjab Financial Corporation Vs. Satish Kumar, 2001 (2) R.C.R. (Civil) 393. It is observed in this case that no entry was got inserted in the revenue record by the Bank being its equitable mortgagee. The property vested in earlier auction purchaser in a legal manner, who has further sold the same. Thus, the subsequent purchaser became a bonafide purchaser for consideration. It is observed that the Bank cannot get the same property re-auctioned in execution of the decree obtained by it. In my view, the ratio of law laid down in this case would not strictly apply to the facts of the present case. In the cited case, the property had already vested in a legal manner on account of it being purchased in an auction. The auction purchaser then further sold the same and in this background, it was observed that the Bank cannot get the same property re-auctioned in execution of a decree. That situation strictly does not apply in the present case. The facts as noticed in the present case clearly show that the petitioner was aware of the fact that Jang Singh had bought this property from Paramjit Singh. Despite having known this fact that the same is subject to some execution proceedings, the petitioner failed to take any measure for over a period of five years. Obviously the petitioner cannot have a better title than one which could be passed on to her by the seller. It is not disputed that the property bought by the petitioner was under a mortgage with the decree-holder/LIC. Since there was no bar in selling this mortgaged property during the pendency of mortgage or even if it was attached, the sale in favour of the petitioner is not effected in any manner. However, the petitioner Civil Revision No.4181 of 2007 : 6 : as a purchaser has stepped into the shoes of a mortgagor and as such would be liable to discharge the liability standing on the property. Her objection petition has, thus, been rightly dismissed. There is no material irregularity pointed out by the learned counsel for the petitioner, which may call for any interference. The petitioner obviously can have her remedy against Jang Singh or Paramjit Singh. The present petition, however, is dismissed. February 05, 2008 ( RANJIT SINGH ) ramesh JUDGE