ORDER

One Mr.Raju had availed loan from the Respondent-

Bank in a sum of Rs.25 lakh in May 2013 by mortgaging the subject property by way of security for repayment. In a vehicular accident, he breathed his last on 09.07.2014 having left petitioner no.1 as mother, petitioner no.2 as father, petitioner no.3 as brother & Respondent no.1 as his widow. There were children too, but they died later. The Bank had obtained a decree for repayment of the loan at the hands of DRT, Bengaluru in O.A.No.1261/2017, disposed off on 02.03.2019.

2. In the meanwhile, the petitioners had filed a civil suit in O.S.No.6621/2014 for partition and separate possession of the mortgaged property wherein the first Respondent herein being the widow of Mr.Raju was also a defendant along with her children. Incidentally, the 2nd Respondent-Bank was arrayed as defendant no.4. This suit came to be decreed on 25.10.2021 allotting particular shares inter alia to the petitioners. The Bank took recovery proceedings pursuant to the DRT decree in terms of the decree in question. Petitioners had represented to the Bank contending that they were ready and willing to pay their portion of the debt. The partition decree. This, the Bank did not agree and therefore petitioners have presented the petition invoking writ jurisdiction.

3. Learned Sr. Panel Counsel appearing for the Respondent-Bank vehemently opposed the petition contending that there was no decree against her client in the subject partition suit; the court had only directed the Bank to consider request of petitioners and therefore that mandate would not answer the definition of decree as given u/s.2(2) of CPC, 1908 even in its wider connotation. She also contends that the rights of the petitioners cannot be larger than those of the deceased borrower in whose shoes they stand; if borrower could not press claim of the kind against the Bank, those who stand in his shoes by succession or otherwise also cannot. So contending the learned Panel Counsel seeks dismissal of the writ petition.

4. Having heard the learned counsel for the parties and having perused the petition papers, this court is broadly in agreement with the submission made by learned Sr. Panel Counsel appearing for the Respondent-

Bank for the following reasons:

a) The loan in question was taken by Mr.Raju what was way back in May 2013. However, he met his Maker in 2014 and to his estate petitioners & the first Respondent succeed as class 1 & class 2 heirs, all they being Hindus. They have obtained a decree is true; however, no decree is granted as against 2nd Respondent-Bank; learned Panel Counsel for the Bank is more than justified in contending that the direction contained in the subject decree “to consider the request of petitioners” by no stretch of imagination amounts to a decree. Therefore in the guise of this petition they cannot enforce something which is not a decree qua the Bank.

b) Learned Panel Counsel for the Bank is also justified in contending that rights of the assignees of the borrower are co-terminus with those of the borrower himself and in no circumstance they can be more than his. If there is a mortgage, the successors to the mortgaged property become only the holders of equity of redemption; an equity of redemption does not entitle the holders to do service of debt by apportionment inasmuch as, such a right do not avail to the mortgagor himself. An argument to the contrary cannot be countenanced without prejudicing the interest of the mortgaging Bank in absence of enabling provision.

c) The contention of the learned counsel for the petitioners that the partition decree secured at the hands of a civil court should not be rendered a paper decree, is true; but the decree obtained by the Bank at the hands of the DRT also cannot be rendered into a paper decree, either. In the balance, the Bank scores more points than the petitioners since Banks of the kind handle public money and therefore the doctrine of public trust sneaks in. This apart,