C.R. No. 2559 of 2008 [1] IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. C.R. No. 2559 of 2008 Date of Decision: August 17, 2009 Chamkaur Singh and another …..Petitioners Vs. Punjab Financial Corporation and others …..Respondents CORAM: HON’BLE MR. JUSTICE M.M.S. BEDI. -.- Present:- Mr.H.S. Batth, Advocate for the petitioners. Mr.B.S. Sidhu, Advocate for the respondents. -.- M.M.S. BEDI, J. The petitioners have preferred this revision petition under Article 227 of the Constitution of India against the order dated April 16, 2008, passed by Additional District Judge, Amritsar, whereby the prayer of the petitioners to release their land Killa No. 55/24(8-0), 65/4 (8-0), 5 (5-5), 7 (2-19), Khata No.110/262, total measuring 24 kanals 4 marlas as per C.R. No. 2559 of 2008 [2] jamabandi for the year 2003-04 of Village Tera Kalan, Tehsil Ajnala, District Amritsar, from attachment. Petitioners claim that they have purchased the agricultural land mentioned hereinabove from respondents No.2 to 4 vide registered sale deed dated April 19, 1995. A copy of the sale deed has been placed on record as annexure P-1, wherein it is mentioned that the petitioners had purchased the abovesaid land for a consideration of Rs.1.37 lacs in equal shares. There is a specific stipulation in the sale deed that there was no encumbrance on the land earlier. It had also been clarified that in case of any defective ownership or any legal complications the consideration of the sale deed alongwith costs will be returned back to the purchasers. Petitioners claimed that the mutation was also sanctioned in their favour on August 12, 1995. Petitioners claimed that they are bonafide purchasers and they had purchased this land for valuable consideration after making enquiry pertaining to the encumbrance of the land. The petitioners have alleged that after April 19, 1995, they had been in possession of the abovesaid property and enjoying all rights therein. The petitioners, for the first time, came to know in January 2005 from rapat No.212 dated January 21, 2005 that respondents No.2 to 4 had raised a loan from Punjab Financial Corporation, Chandigarh, to the tune of Rs.17,26,950.75/- and that respondent No.1- Punjab Financial Corporation had obtained a decree from the Civil Court on April 18, 2003. Respondent No.1 had filed execution application under Order 21 Rule 11 CPC for recovery of decretal amount alongwith interest at the rate of 24% and other misc. expenses by attaching C.R. No. 2559 of 2008 [3] the abovesaid property and sale of other moveable and immoveable assets of the judgment debtors. Copy of the execution application has been attached with the petition as annexure P-4. The petitioner filed an objection petition claiming that they are bonafide purchasers and that the judgment debtors owns land measuring 37 kanals and also other land and that they had concealed the fact that they had raised a long against the property sold to them, therefore, it was prayed that Khasra No.55/24(8-0), 65/4 (8-0), 5 (5- 5), 7(2-19), be released from attachment and should not be sold. Copy of the application under Order 21 Rules 58 and 59 CPC has been attached with the petition as annexure P-5. The Punjab Financial Corporation filed reply annexure P-6. The decree-holder denied that the land covered under khasra numbers mentioned in the execution application had been purchased by the petitioners from Harbans Kaur and others in the year 1995 and that the objections have been filed in connivance with judgment debtors to create hurdle for the Punjab Financial Corporation and that the sale is not binding on Punjab Financial Corporation. The decree-holders claimed that as per the mortgage deed, respondent No.1 has got first and paramount charge over the property in question including the khasra numbers as mentioned in the application. The execution proceedings are based on mortgage decree under the provisions of Order 21 Rule 66 CPC, therefore, under Order 21 Rule 58 CPC cannot be invoked. The Executing Court of Additional District Judge, Amritsar, dismissing the application vide impugned order by observing as follows:- C.R. No. 2559 of 2008 [4] “I have considered the rival contentions raised by the learned counsel for the parties. The vendor applied for loan to the PFC which was allowed against mortgage of property measuring 3/4th share of 59 K 13 M, Khasra No. 55/25/2(1- 11), 33/21 (6-18), 22/2(5-11), 34/22/2 (2-6), 23 (6-18), <@5 (6-18) <55/24 (8-0), 65/4(8-0), <5 (5- 5), 7(2-19), situated in village Tehra Kalan, Tehsil Ajnala District Amritsar. The mutation was sanctioned. Thereafter, the vendor, not deposited the instalments and become defaulter and then PFC obtained decree dated 18.4.2003 when the original owner who was having the better title mortgaged their land measuring 3/4th share of 59 K 13 M, Khasra No. 55/25/2(1-11), 33/21 (6-18), 22/2(5-11), 34/22/2 (2-6), 33/21 (6-18), 22/2 (5- 11), 34/22/2 (2-6), 23 (6-18)<@5 (6-18) <55/24 (8-0), 65/4(8-0), <5 (5-5), 7(2-19) situated in Village Tehra Kalan, Tehsil Ajnala District Amritsar, and obtained loan then question does not arise for selling the same vide sale deed dated 18.4.1995 because owner cannot sell the property until and unless he clears or make the payment of loan amount. Moreover, it is well settled law that C.R. No. 2559 of 2008 [5] in case the ownership is transferred then the vendee shall come to be footsteps of original owner and they cannot shirk from their legal responsibility. Moreover, while advancing loan the mortgage is of specific khasra number and the objector has purchased the property from total holding of Harbans Kaur etc. and if the land comes to less than the purchase then they can adjust with the owners and cannot effect the PFC department. Therefore, I find no merit in the application and the same stands dismissed.” Learned counsel for the petitioner has vehemently urged that the petitioners being bonafide purchasers cannot be deprived of the property being purchasers. I have heard counsel for the petitioners and gone through all the facts and circumstances of the case. The Additional District Judge, Amritsar had passed a decree in favour of Punjab Financial Corporation in their suit for recovery of Rs.17,26,950.75/- alongwith interest. Copy of the decree has been placed on record as annexure P-8. As per the said judgment and decree by virtue of a mortgage deed dated September 9, 1992, a loan of Rs.2,97,000/- was given to Amar Singh, Karam Singh and Harbans Kaur which was not returned as a result of which the Additional District Judge, Amritsar, while exercising powers under Section 31 (1) (aa) of the Punjab Financial Act, 1951, ordered the sale of the properties and assets C.R. No. 2559 of 2008 [6] hypothecated by respondents for security of the loan on the basis of mortgage deed dated September 9, 1992 and held that if the mortgage assets of the Judgment Debtors are not sufficient to satisfy the claim of the Corporation then the other assets owned by the judgment debtors be sold by enforcing the personal guarantee of the respondents. Order 21 Rule 58 CPC deals with the objection or claim of a person made against the attachment of any property in execution of decree on the ground that such property is not liable for such attachment. The Court has got power to adjudicate upon the claim or objection in accordance with the provisions. Order 21 Rule 58 CPC reads as follows:- “58. Adjudication of claims to, or objections to attachment of, property: (1) Where any claims preferred to, or any objection is made to the attachment of, any property attached in execution of a decree on the ground that such property is not liable to such attachment, the court shall proceed to adjudicate upon the claim or objection in accordance with the provisions herein contained: PROVIDED that no such claim or objection shall be entertained— (a) where, before the claim is preferred or objection is made, the property attached has already been sold; or C.R. No. 2559 of 2008 [7] (b) where the court considers that the claim or objection was designedly or unnecessarily delayed. (2) All questions (including questions relating to right, title or interest in the property attached) arising between the parties to a proceeding or their representatives under this rule and relevant to the adjudication of the claim or objection, shall be determined by the Court dealing with the claim or objection and not by a separate suit. (3) Upon the determination of the questions referred to in sub-rule (2), the Court shall, in accordance with such determination,-- (a) allow the claim or objection and release the property from attachment either wholly or to such extent as it thinks fit; or (b) disallow the claim or objection; or (c) continue the attachment subject to any mortgage, charge or other interest in favour of any person; or (d) pass such Order as in the circumstances of the case it deems fit. (4) Where any claim or objection has been adjudicated upon under this rule, the Order made thereon shall have the same force and be subject to the same conditions as to appeal or otherwise as if it were a decree. C.R. No. 2559 of 2008 [8] (5) Where a claim or an objection is preferred and the court, under the proviso to sub-rule (1), refuses to entertain it, the party against whom such Order is made may institute a suit to establish the right which he claims to the property in dispute; but, subject to the result of such suit, if any, an Order so refusing to entertain the claim or objection shall be conclusive.” In the present case, the mortgage deed in favour of mortgagee- Punjab Financial Corporation is dated September 9, 1992 and the sale deed on the basis of which the petitioners claim title is of the year 1995. The rights of mortgagee are governed by the provisions of Transfer of Property Act, 1882 subject to their adoption by a particular State but general principles and rights of the mortgagee are governed by provisions of said Act. The petitioners in the present case are subsequent purchasers of property which was already mortgaged. In the present case the objector seems to have stepped into the shoes of original mortgagor. Original mortgagor had right to redeem the property on payment of the mortgage amount. Rights and liabilities of mortgagor seem to have been transferred to the petitioners but they were not made a party by the Punjab Financial Corporation in a suit for claiming right for mortgage money. In order to cover such situations, a specific provision has been made under Order 21 Rule 58 (3) CPC to enable the Executing Court to continue with the attachment subject to any mortgage. The Punjab Financial Corporation had obtained a decree on April 18, 2003. The Additional District Judge seems C.R. No. 2559 of 2008 [9] to have erred in observing that the original owner of the property could not have sold the property unless and until he cleared the payment of the loan amount. In the present case, the right, title or interest between the parties was required to be determined by the Executing Court. The only relief which can be granted to the petitioners is that if they, having stepped into the shoes of mortgagor satisfy the mortgagee, the sale of the mortgage property can be stopped or deferred but under Section 58 (3) (c), the Court should have continued the attachment subject to any mortgage, charge or other interest in favour of the petitioners. The petitioners have not been able to put-forth sufficient material that they had been bonafide purchasers or that they do not collude with the judgment debtors to defeat the rights of the decree-holder. They have also got a remedy to seek relief against their vendor. Their objection that the decree can be executed against the other property of the decree-holder, has also not been adjudicated upon and has been left open. In view of above discussion, I do not find any ground to set aside the attachment but it is deemed appropriate to order that the attachment will continue subject to the mortgage, charge or other interest of the objector, as they have stepped into the shoes of mortgagor and have got a right to redeem the mortgage on payment of mortgage amount, of course after attachment of any other amount recovered by other means or by attachment of other property. Revision petition is dismissed. C.R. No. 2559 of 2008 [10] August 17, 2009 (M.M.S.BEDI) sanjay JUDGE