The court examined a writ petition seeking a mandatory order to auction mortgaged property. It held that where a civil court has affirmed the petitioner's remedy, writ proceedings are not maintainable for this purpose.
The writ petition is dismissed; liberty granted to file appropriate application before the Executing Court.
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IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 28.08.2017
CORAM
THE HON'BLE MR. JUSTICE M.DURAISWAMY
W.P.No.13093 of 2016 &
W.M.P.No.11460 of 2016
R.Rani Suseela ... Petitioner
v.
1 The General Manager
City Union Bank Ltd.
149, T.S.R. Big Street
Kumbakonam.
2 The Assistant General Manager
City Union Bank Ltd.
94, Court Street
Tirupur -641 601.
3 The Assistant Manager
City Union Bank Ltd. 94 Court Street
Tirupur -641 601.
4 T.N.Soundararajan
5 S.Dhanalakshmi ... Respondents
Writ Petition filed under Article 226 of the Constitution of India praying for the issuance of a writ of Mandamus, directing the 1st respondent bank to auction the half share of the property belonging to
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the 4th respondent as per the final decree passed in O.S.No.79 of 2009 by decree and judgment dated 16.08.2013 and to appropriate the said sale amount towards the outstanding loan amount payable to the 1st respondent bank in respect of OLCC credit facility loan availed by the 4th respondent.
For Petitioner : Mr.A.Natarajan, Senior Counsel for Mr.V.S.Rajah
For Respondents : Mr.N.S.Varadharajan - for R1 to R3 O R D E R
The petitioner has filed the above writ petition to issue a Writ
of Mandamus, directing the 1st respondent bank to auction the half share of the property belonging to the 4th respondent as per the final decree passed in O.S.No.79 of 2009 by the decree and judgment dated
16.08.2013 and to appropriate the said sale amount towards the outstanding loan amount payable to the 1st respondent bank in respect
of OLCC credit facility loan availed by the 4th respondent.
2.1 It is the case of the petitioner that the 4th respondent, who
is her brother, had borrowed a loan from the 3rd respondent bank in the year 1999 and that the property measuring an extent of 2400 sq.ft.
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in T.S.No.890/19/3 in New T.S. Ward, "M" Block 23, T.S.No.154 Ares 0-00-04-0 was mortgaged by the father of the petitioner and the 4th respondent as security for the loan availed by the 4th respondent.
The father of the petitioner was stood as guarantor for the loan availed
by the 4th respondent.
2.2 Since the 4th respondent failed to repay the loan amount, the 3rd respondent bank filed a suit in O.S.No.192 of 2005 on the file of Subordinate Judge, Tirupur to pass a preliminary decree for recovery of a sum of Rs.3,46,513.50 (Rupees three lakhs forty six thousand five hundred and thirteen and fifty paise only) together with subsequent interest and costs.
2.3 The Trial Court, passed a preliminary decree on 31.08.2009 directing the petitioner and the respondents 4 and 5 to pay a sum of Rs.6,04,231/- (Rupees six lakhs four thousand two hundred and thirty one only) together with accrued interest.
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decree in the year 2009. Subsequently, the petitioner filed a suit in O.S.No.79 of 2009 on the file of District Court, Coimbatore for partition and separate possession, as against the 4th respondent. The Trial Court, passed a preliminary decree and subsequently passed a final
decree in the said suit allotting 1200 sq.ft. to the petitioner.
petitioner submitted that the decree passed in O.S.No.79 of 2009 has become final. Further, the learned Senior Counsel submitted that pursuant to the preliminary decree passed in O.S.No.192 of 2005, the respondent bank has not initiated any further proceedings. Now, the contention of the petitioner is that since she was allotted half share in the property mortgaged by her father with the 3rd respondent bank,
the respondents 1 to 3 should bring the property which belongs to the 4th respondent for sale and not her property. The learned Senior Counsel also submitted that both the properties belonging to the petitioner and the 4th respondent were divided by metes and bounds and therefore, it would be suffice to sale the property belonging to the 4th respondent to discharge the decree amount.
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petitioner and the respondents 4 and 5, I am of the considered view that the remedy open to the petitioner is only to file appropriate application before the Executing Court as and when the bank files Execution Petition. In a Writ Petition, filed under Article 226 of the Constitution of India, the petitioner's remedy, which was affirmed by the Civil Court, cannot be deviated or altered. However, the petitioner
has got a remedy under the Civil Procedure Code seeking for
appropriate remedy as and when the respondent bank files Execution Petition.
petition. Accordingly, the writ petition is dismissed giving liberty to the
petitioner to file appropriate application before the Executing Court seeking for the reliefs sought for in the present writ petition. No
costs. Consequently, connected miscellaneous petition is closed.
28.08.2017
Index: Yes/No
Rj
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To
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M.DURAISWAMY,J.
Rj
W.P.No.13093 of 2016
28.08.2017
2 issues framed by the court
Whether the remedy under Article 226 is appropriate when the Civil Court has already affirmed the petitioner's remedy of filing an execution application.
Whether the writ petition invoking Article 226 is maintainable to direct the bank to auction property under a civil decree.
R. Rani Suseela
General Manager, City Union Bank Ltd.
Assistant General Manager, City Union Bank Ltd.
Assistant Manager, City Union Bank Ltd.
T.N. Soundararajan
S. Dhanalakshmi
M. Duraismwamy
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
