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1994 DIGILAW 58 (MAD)

A. Mariasusai v. Natchiarammal and Others

1994-01-12

SWAMIDURAI

body1994
Judgment : This civil miscellaneous appeal arose out of an order in E.A.No.487 of 1992 in E.P.No.91 of 1990 on the file of the learned Prinicpal Subordinate Judge, Tirunelveli, dismissing the application filed under O.21, Rule 89 and Sec.151, C.P.C. for setting aside the sale in respect of the third item of the execution petition. 2. One Mariasusai filed an affidavit in support of the application E.A.No.487 of 1992 contending as follows: The defendant Iyemperumal Nadar, is the father of A.Deivigalingam and A.Natarajalingam both residing at No.82-A Kavalpirai street, Tirunelveli town. The abovesaid two persons filed O.S.No. 111 of 1982 in the lower court against the respondent and on 310. 1988, a preliminary decree was passed by which the third item of the property mentioned in the E.P., was allotted to the above two persons and others. On the strength of the preliminary decree, the abovesaid two persons had offered the said third item for sale to Mariasusai, the third party in E.A.No.487 of 1992. The third item of the property would be a total extent of 12.55 cents. Along with that item, the abovesaid two persons also agreed to sell another portion of property measuring 3.5 cents and the price money for sale was fixed as 3 lakhs. The agreement of sale was entered into on 6. 1990 between the third parly and the abovesaid two persons and on that day, the third party has paid Rs.2,000 towards advance amount. Again on 17. 1990, the third party has paid a sum of Rs.60,000 towards advance amount. Totally he has paid Rs.65,000 as advance. According to the third party, the third item of the property would easily fetch a sum of Rs.2.25 lakhs. 3. The plaintiff filed O.S.No.40 of l982 against the defendant lyyem perumal Nadar for recovery of Rs.30,392 and a preliminary decree was passed on 17. 1982 and a final decree was passed on 29. 1990. The third item of the properly was brought to sale and the third party had purchased the third item for Rs.50,010on24. 1992and E.P. was posted for confirmation of sale on 7. 1992. The abovesaid two persons who are the sons of the defendant had colluded with the auction purchaser in order to cheat the third party and in order to escape from the contractual liability as per the sale agreement. The auction purchaser had purchased the property for Rs.50,010. 1992and E.P. was posted for confirmation of sale on 7. 1992. The abovesaid two persons who are the sons of the defendant had colluded with the auction purchaser in order to cheat the third party and in order to escape from the contractual liability as per the sale agreement. The auction purchaser had purchased the property for Rs.50,010. The third party is prepared to deposit the initial money. Hence, the petition is filed for setting aside the sale. 4. The 6th respondent in the E.P. who is the auction purchaser has filed a counter contending as follows: The petition to set aside the sale has been filed in collusion with the defendant. The defendant’s son Deivigalingam and Nalarajalingam filed a petition under O.21, Rule 56 and Sec.151, C.P.C. In E.A.Nos.5.38 of 1991 and 539 of 1991 before the property was brought to sale and those petitions were dismissed on 3. 1992 and those persons filed these collusive petitions in order to defeat the rights of the plaintiff. The agreement said to have been executed by the abovesaid two persons is not valid. There is no bona fide in the petition for setting aside the sale and the agreement also is not true and it was fabricated for the purpose of the case and the petition for setting aside the sale is also barred by limitation. The sale has taken place on 24. 1992 and the petition for setting aside the sale should have been filed within 26. 1992 and so, under Art.127 of the Indian Limitation Act, the petition is barred and the decree amount has not been deposited as per the 0.21, Rules 89 and 92(2), C.P.C. The auction purchaser submits that there is no violation of any of the provisions of C.P.C. and so that the sale has to be confirmed and the petition to set aside the sale has to be dismissed. 5. The sale was held on 24. 1992 and the 6th respondent purchased the property in court auction for Rs.50,010. The petitioner in the E.A. has stated that he has entered into an agreement of sale with the respondents 3 and 4 for purchasing the third item along with other properties for Rs.3,00,000 under Ex.A-1, dated 6. 1990. It is the case of the third party, that he has paid Rs.65,000 in all to the respondents 3 and 4. The petitioner in the E.A. has stated that he has entered into an agreement of sale with the respondents 3 and 4 for purchasing the third item along with other properties for Rs.3,00,000 under Ex.A-1, dated 6. 1990. It is the case of the third party, that he has paid Rs.65,000 in all to the respondents 3 and 4. According to the third party, he was not aware of the suit and the court sale etc. The third item of the suit property, according to the appellant is worth about Rs.2.25 lakhs, but it was sold for Rs,50,010. The lower court dismissed the petition on the main ground that the application was not filed in time. 6. Learned counsel for the appellant relied upon the decision in the case of Ismail Rowther v. Mynoon Bivi, (1965)2 M.L.J. 197:I.L.R. (1966)1 Mad. 313: 78L.W. 498: A.l.R. 1966 Mad. 84 in support of his contention that if there is any fraud practised on the court in the sale proceedings, the sale could be set aside even if the application for setting aisde the sale is filed beyond the period of limitation. In this case, the decree amount has been deposited under O.1, Rule 89, C.P.C., when the application was filed for setting aside the same. The petition for setting aside the sale was presented on 7. 1992. The lower court found that there was a fraud in the court auction. But it dismissed the application on the ground that it was barred by limitation. 7. After hearing both parties, I concur with the view taken by the executing court that there was a fraud in the sale proceedings and that the property was sold for a low and inadequate price. Accordingly, following the view taken by this Court in the abovesaid decision in Ismail Rowther v. Mvnoon Bivi, (1965)2M.L.J. 191. L.R. (1966)1 Mad. 313: 78 L.W. 498: A.l.R. 1966 Mad. 84, the court has ample jurisdiction to set aside the sale though the application was not filed in time. Accordingly, the order of the lower court is set aside and the appeal is allowed and the auction purchaser is entitled to refund of the sale price and other incidental charges paid by him in the lower court. In the circumstances, there is no order as to costs.