- (1.) D. K. Seth, J. The suit between two private persons were instituted in the year 1973 and was decreed in 1978. It was af firmed on appeal in 1979. The second ap peal was decided in 1992. The decree was sought to be executed. Sri Y. M. Zaidi, learned counsel for the petitioner states that Special Leave Petition is pending but very fairly concedes that no stay order has been obtained. In the execution an applica tion under Section 47 of the Act was filed claiming that the suit property is mortgaged with the Land Development Bank. There fore, the decree is in-executable in view of the provisions contained in the U. P. Co operative Land Development Banks Act 1984 (hereinafter referred to as the said Act ).
(2.) SRI Ashok Singh, learned counsel, holding brief of SRI Shashi Nandan, learned counsel appearing on behalf of the respon dents submits that in the application under Section 47 it has not been disclosed as to on which date the alleged mortgage was created in favour of the Land Development Bank. He points out from the order passed in the revision against the order rejecting application under Section 47 of the Act that the alleged mortgage was created some times in 1992 and that it was not mortgaged under Section 22 of the said Act. According to him both the courts below have found against the petitioner. Therefore, this Court should not interfere with the same. In reply thereto Sri Zaidi, learned counsel for the petitioner contends that in view of the provisions contained in Section 22 of the said Act the doctrine of respondents as contained in Section 52 of the Transfer of Property Act, 1882, would not be applicable because of the non obstante clause with which Section 22 begins. He further con tends that though no date was mentioned as to when such mortgage was created in the application under Section 47 of the Code of Civil Procedure, but the said fact was dis closed in para 10 of the writ petition wherein he has pointed out that the loan was obtained from the Bank in the year 1976 and 1992. However, he very fairly concedes that this fact of obtaining loan from the Bank in the year 1976 was not disclosed in the suit, though the suit was decreed in 1978 or in any of the two successive appeals and was raised for the first time in the application under Section 47 of the aforesaid Act. I have heard Sri V M. Zaidi, counsel for the petitioner and Sri Ashok Singh, counsel for the opposite party at length.
(3.) IN the present case the suit was ad mittedly instituted in 1973. It is alleged by the petitioner in paragraph 10 of the writ petition that the petitioner had mortgaged the property with the Co-operative Land Development Bank (hereinafter referred to as the said Bank) and took loan from the said Bank in the year 1976 and in the year 1992. The suit was decreed in 1978. The first appeal was decided in 1979 and the second appeal in 1992. Admittedly the fact of the alleged mortgage etc. was not brought on record either in the suit or in any of the appeals. For the first time it was pleaded in the application under Section 47 of the Code of Civil Procedure and that too without any particulars at all which how ever, was sought to be mended in he writ petition and then again very feebly and vaguely It appears that there was no material before the learned court below, on the basis of application under Section 47 as to the date on which such interest was created in favour of the Bank. The petitioner has not come up with proper particulars in order to make out a proper case in the application under Section 47. He has neither disclosed the date of taking loan and creation of mortgage nor has disclosed any documents in support thereof. Unless proper case is made out the court is not called upon to decide the same. The learned counsel for the petitioner has not been able to point out as to whether any document in regard to creation of such interest was produced before the executing court or not. Though, however, he relies on the statement made in para 12 of the writ petition to the extent that the finding of the revisional court that there was no deed of mortgage executed, is incor rect but he has not spelt out anything in the writ petition that any such deed of mortgage was created or executed nor he furnished any such particulars thereof nor copy of the same is annexed with the writ petition. In absence of all these materials it is not pos sible to go into these questions at this stage of raising objection under Section 47 of the Code.;