Mr. A.N. Jindal, J. (Oral):- Having remained unsuccessful before both the Courts, the State Bank of Patiala, decree holder-appellant (hereinafter referred as ‘the appellant’) has filed this execution second appeal.

2. The time lag in the matter under consideration is enormous. In the year 1984, M/s Shree Ganesh Sales, of which Himesh Sablok-respondent No.3 and Surinder Behal-respondent No.4 were partners, was granted cash credit facility to the tune of Rs.50,000/-. The allegations are that the said Himesh Sablok had hypothecated the property i.e. H.No.730, Sector 8-B, Chandigarh with the appellant as a credit security by depositing title deeds to obtain the said facility. Having failed to pay the loan amount, a civil suit No.161 was filed on 26.10.1987 for recovery of Rs.61,894-05 paise, under Order 34 read with Order 7 Rule 1 CPC. In the said suit, the defendants i.e. M/s Shree Ganesh Sales, Himesh Sablok and Surinder Behl were proceeded against exparte, whereas Sudhir Mahajan-respondent No.5 had contested the suit. The said suit resulted into a preliminary decree on 19.04.1989 for recovery of Rs.61,894.05 paise along with interest at the rate of 15½ % per annum since the date of filing of the suit till realization. It was further ordered that on failure to pay the said amount within three months, the property so hypothecated i.e. H.No.730, Sector 8-B, Chandigarh, would be sold and still in the case of deficiency in recovery, the appellant would be at liberty to recover the amount from respondent Nos. 2 to 5 personally. The aforesaid preliminary decree dated 19.04.1989, ultimately merged into final decree dated 02.05.1996.

3. After the appellant filed the execution petition, the Court issued notice and thereafter, the aforesaid property was ordered to be attached.

4. During the execution proceedings, respondent No.1- objector being vendee through a registered sale deed dated 11.11.1994 from Mohinder Parkash Sablok, filed the objection petition on the grounds that H.No.730, Sector 8-B, Chandigarh was owned by Sh. Sukh Raj Sablok along with his wife Smt. Kaushalya Devi, who had another property at Solan, known as Mahinder Bhawan, Rajgarh Road, Solan. By virtue of a registered family settlement dated 09.02.1986, the house in question had fallen to the share of Mohinder Parkash Sablok, who had sold the same to the respondent No.1 without disclosing the alleged mortgage decree in favour of the the bank, therefore, he was bonafide purchaser for consideration without notice. It was further submitted that no title deed, alleged to be deposited by Himesh Sablok, is available on the judicial file. As such, the Court passing the decree was not competent to pass the decree for recovery by way of sale of the mortgaged property. Since composite decree was passed on 19.04.1989, therefore, final decree could not be passed. The decree having been passed on 19.04.1989, the execution filed in the year 2004, was barred by time. The exparte decree having been passed and sale having not been challenged, the house in question could not be attached and sold in order to execute the said decree.

5. Reply to the objection petition was filed, wherein it was submitted that the said house was mortgaged with the bank by depositing the title deed by the owners on 21.05.1985, therefore, any sale subsequent thereto could not confer any right, title or interest of the purchaser-objector. The house in question was the ownership of Smt. Kaushalya Devi, Mahinder Parkash and Himesh Raj by way of a conveyance deed dated 26.10.1962.

Consequently, Himesh Raj himself being a co-sharer and authorized by Smt. Kaushalya Devi and Mahinder Parkash, had mortgaged the said premises with the appellant-bank as creditor’s security for discharging the loan. It was further submitted that the Civil Court could not go beyond the decree, therefore, there was no impediment for recovering the decretal amount by way of sale of the house.

6. The respondent No.1 tendered documen