1. The facts of the case are as follows:

The first respondent, a nationalized bank, had filed a suit for recovery of a sum of Rs.5,02,052/- with costs and interest from the petitioner and the second respondent, who were arrayed as defendants no.2 and 1, respectively.

The first defendant, respondent no. 2 herein, is said to have applied to the plaintiff for the issuance of a bank guarantee for a sum of Rs.8 lakh on 27.3.2000, in favour of one M/s HPC Ltd., Bangalore. The first defendant is also said to have executed a counter guarantee in favour of the plaintiff agreeing to repay the amount of Rs.8 lakh with interest, compounded with quarterly rests. He is said to have deposited a sum of Rs.2 lakh with the plaintiff bank, as a lien on the said account. It transpires, the petitioner, who was the second defendant in the suit, had also executed a deed of guarantee in respect of the transaction, to secure the due repayment of Rs.8 lakh, by the first defendant. In furtherance of the said guarantee, he is said to have extended an equitable mortgage executed by him much earlier in favour of the plaintiff bank, to extend to the present transaction as well. The mortgage was in respect of immovable property situated at Siddapura, Kodagu.

Eventually, the beneficiary is said to have invoked the bank guarantee, the plaintiff having paid the amount covered under the guarantee, is said to have called upon the defendants, jointly and severally, to repay the amount of Rs.502052. Since the defendants failed to make payment, the suit was instituted.

The suit was barely contested, in that, the first defendant was set ex-parte. The second defendant, though had filed his written statement, did not choose to tender any evidence. The defence sought to be set up was that the suit was barred under Section 67-A of the Transfer of Property Act, 1882 (Hereinafter referred to as the 'TP Act', for brevity). In that regard, the trial court had merely found that there was no evidence tendered to support the contention. The suit was accordingly decreed. A Preliminary decree was ordered to be drawn up.

Thereafter, as the defendants had failed to pay the decretal amount, final decree proceedings were initiated. Though the defendants had filed their objections resisting the same, the petition was allowed and the plaintiff was held entitled to recover the decretal amount by the sale of the property offered as security under an equitable mortgage, as already stated.

The Decree holder then initiated execution proceedings to bring the property of the Second Judgment debtor, the petitioner herein, to sale. The petitioner filed objections to the execution petition, to contend that the Decree holder had obtained an attachment before judgment of a building belonging to the principal debtor, situated in Mysore City, and which was given on lease to M/s State Bank of India, and the rentals were attached in the suit filed in the first instance, in O.S.No.51/2004. It was hence alleged that the plaintiff and the first defendant had colluded to deprive the petitioner of valuable property, though the entire decretal amount could be conveniently recovered from the first defendant, the first judgment debtor. It was also urged that there was no account furnished of the money recovered by way of rentals during the pendency of the suit and suitable deduction was not afforded.

The objections having been summarily rejected as the proceedings had attained finality, the present petition is filed.

2. It is contended on behalf of the petitioner that the executing court has glossed over the fact that there was already an order of attachment of rents in respect of a building belonging to the second respondent herein, the principal borrower. There is no reference to the rents so attached and the same is not taken into account in seeking to recover the decretal amount by bringing the petitioner's property to sale. It is urged that though in the eye of law, the decree holder has the op