Research › Search › Judgment

Madhya Pradesh High Court · body

2020 DIGILAW 278 (MP)

Shyam v. State of M. P.

2020-02-20

VIVEK RUSIA

body2020
ORDER 1. Petitioner has filed the present petition being aggrieved by the notice of attachment dated 4.10.2017 affixed in his house for recovery of debt against Jitendra Goyal. Facts of the case in short are as under: 2. Petitioner and Jitendra Goyal are cousin brothers and the joint owner of house No. 38, Road No. 4, Pardesipura. Undisputedly, Jitendra Goyal took a loan of Rs. 5 lacs from the respondent/bank and in order to secure the loan mortgaged the house belonging to his father Mangilal Goyal. Mangilal Goyal pledged house No. 38, Road No. 4, Pardeshipura against the security of Rs. 5 lacs in the bank. Since Jitendra Goyal did not repay the loan amount, therefore, the bank has initiated the recovery proceedings. The debt payable to the co-operative bank is liable to be recovered by way of RRC for which the Tahsildar is the competent authority to issue a notice for attachment of the mortgaged property. In exercise of the powers under section 147 of the MPLR Code the Tahsildar has issued an attachment notice and affixed it in the house No. 38/4 Pardesipura. Being aggrieved by the aforesaid notice, petitioner has filed the present petition on the ground that he is the owner of the property by way of Bakhshishnama executed by Smt.Ramdularibai Goyal w/o Badriprasad Goyal. Along with this petition the petitioner has filed the photocopy of the Bakhshishnama and claiming that he is the exclusive owner of the house No. 38/4, Pardesipura which cannot be attached for recovery of loan from the Jitendra Goyal. 3. By order dated 8.12.2017 this Court has restrained the respondents from taking any further coercive action. After notice respondents No. 2 and 3 filed the return by submitting that the owner of the house is Mangilal Goyal, who mortgaged the house in favour of his son Jitendra Goyal for securing the loan of Rs. 5 lacs, therefore, answering respondent has rightly initiated the proceeding for recovery of the debt by way of RRC. Along with the return, the bank has filed the copy of the loan document and the affidavit given by Mangilal Goyal. 4. Whether the petitioner is the exclusive owner of the house No. 38/4, Pardesipura or a joint owner with Mangilal is a disputed question of fact which cannot be decided in the present writ petition. Along with the return, the bank has filed the copy of the loan document and the affidavit given by Mangilal Goyal. 4. Whether the petitioner is the exclusive owner of the house No. 38/4, Pardesipura or a joint owner with Mangilal is a disputed question of fact which cannot be decided in the present writ petition. If there is any inter se dispute between the co-owner that can be settled in a civil Court. Since Mangilal being the owner of the house No. 38/4, Pardesipura had already mortgaged the said house with the bank in order to secure the loan in favour of his son then the said house can be attached for recovery of the debt. Even in the Bakhshishnama the south side of house No. 38/4, Pardesipura was given to the present petitioner for a sum of Rs. 40,000/-, therefore, the present petitioner is not an exclusive owner of the said house, hence the respondents have not committed any error while issuing the impugned notice of attachment. 5. In view of the above, no case is made out for interference in this petition. Accordingly, the petition is dismissed.