1. This revision under Section 115 of the Code of Civil Procedure, 1908 is directed against the order dated 12-09-2007 in Execution Petition no.1355/1997 on the file of 12th Addl. Judge, court of small causes, Bangalore, allowing the application filed under Section 151 C.P.C. filed by the respondent No.2 and rejecting the memo file by the petitioner herein, thereby permitting the respondent No.2 to withdraw Rs.1,50,550/- and allowing the petitioner to withdraw Rs.24,450/-

2. Heard the learned counsel for both sides.

3. The contextual facts are:

The petitioner is the owner of immovable property, which was leased to one Vivek Mehara. He had established an industrial unit, but failed to pay rent as and when it accrued due. It is alleged he committed breach of terms and covenants of the lease consequent to which petitioner initiated eviction proceedings in HRC NO.1577/1994 which on contest was allowed directing eviction of Vivek Mehara – respondent No.1 herein. The decree passed in HRC 1577/1994 was put in execution in E.P. No.1355/1997. Initially warrant for delivery of possession, in terms of the decree, was issued by the trial Court in favour of the petitioner, but it could not be executed as the premises was locked. On his application the trial Court directed issuance of execution warrant with permission to break open the lock with police assistance if necessary. The decree holder while executing the warrant removed the locks of the premises, but found several machineries were imbedded to the earth and could not be removed. The Bailiff prepared detailed panchanama and submitted it to the court. The Petitioner decree holder was again before the trial Court seeking for issuance of direction for removing of the embedded properties.

4. At this stage, the respondent - bank filed application before the executing court seeking custody of the movable properties on the premise that the entire properties were hypothecated to it by the respondent No.1 as security to the loan advanced. The petitioner herein opposed the said request on the ground that he had sought to implead the bank in HRC proceedings but the bank had on its own volition declined to participate in the proceedings on the ground that it had no interest in the lis between the petitioner and the respondent No.1.

5. After considering the grounds urged by the petitioner and the respondent No.2 – bank the trial Court by its order on 06-08-1997 directed the petitioner decree holder to keep the movable properties in his custody till the Judgment debtor claims the same and at the same time dismissed the application filed by the respondent No.2 – bank and closed the Execution Petition No. 1355/1997 as fully satisfied.

6. Aggrieved by the order dated 06-08-1997 the petitioner decree-holder was in revision before this court in HRRP No. 1778/1998. This court allowed the petition by an order dated 03-11-1999 directing the trial Court to notify the petitioner decree holder and the respondent No.2 and to put the movable properties found in the premises for sale by public auction and to pass appropriate order regarding money realizes after hearing the interested parties. That order was however modified by this court by its subsequent order dated 15-11-1999 directing the trial Court to take custody of the properties and notify sale by publish it to all concerned and then take appropriate action in the matter.

7. In terms of the order passed by this court the trial Court restored E.P. No. 1355/1997 to its file and in terms of the directions issued by this court in HRRP No.1778/1998 appointed the Registrar, Court of Small Causes, Bangalore as Commissioner to inspect the petition schedule premises after notice to decree holder (petitioner herein) and the respondent No.2 – bank and submit report regarding machineries and other movable properties shown as item No.1 to 11 in Bailiff’s report and to report as to whether those properties could be shifted to the court premises for k