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2004 DIGILAW 648 (MAD)

Pannerselvam v. Muthukrishna Naidu

2004-04-08

A.R.RAMALINGAM

body2004
ORDER: This revision petition has been filed by the aggrieved petitioner/Auction Purchaser namely one Pannerselvam against the fair and decretal order passed by the Subordinate Judge Kallakurichi on 31.8.2000 in C.M.A.No.11 of 1997 confirming the fair and decretal order of the Principal District Munsif Court of Kallakurichi in E.A.No.309 of 1988 in E.P.No.483 of 1987 in O.S.No.309 of 1988. 2. The said E.A.No.309 of 1988 appears to have been filed by the Judgment Debtor Muthukrishna Naidu to set aside the Court auction sale held on 10.2.1988 on various grounds, by invoking Sec.47, read with Secs.94 and 151 of the Civil Procedure Code and the same has been allowed by the Principal District Munsif, Kallakurichi. 3. Aggrieved against the said order of the Principal District Munsif, the auction purchaser preferred C.M.A.No.11 of 1997 and the Sub Judge, Kallakurichi, while discussing the points in the judgment of the trial Court, observed that the provision of law under Sec.47 read with Secs.94 and 151, Civil Procedure Code cannot be invoked by the judgment-debtor for setting aside the sale and in as much as the District Munsif has set aside the sale under the said provision, the aggrieved party, namely the Auction Purchaser, should have moved only the High Court by way of revision and that the C.M.A. filed by him cannot be maintained and thereby dismissed the C.M.A. with liberty to the Auction Purchaser to move the High Court by way of revision petition. However the Sub-Judge, Kallakurichi confirmed the order of the District Munsif in E.A.No.309 of 1988. 4. Aggrieved against such order, this revision petition has been filed. 5. The counsel appearing for the revision petitioner contends that all the grounds and allegations made in E.A.No.309 of 1998 before the Principal District Munsif are with a view to attract only O.21, Rule 90, Civil Procedure Code and cannot in any way attract Sec.47 or 151 or any other section of the Civil Procedure Code. He further contends that even though the provision of law has been improperly quoted in E.A.No.309 of 1988, the substance of the said E.A. can only be quoted in reference to O.21, Rule 90 in view of the allegations of Muthukrishna Naidu for publication and issue of the notice etc. Likewise, the ingredients of Sec.47 are not at all available for the judgment debtor to file E.A.No.309 of 1988. Likewise, the ingredients of Sec.47 are not at all available for the judgment debtor to file E.A.No.309 of 1988. However, in spite of the fact that the Sub-Judge, Kallakurichi has pointed out the same in his order, he has dismissed C.M.A.No.11 of 1997 as not maintainable stating that only a revision petition before High Court can be filed. 6. Further, in this context, the learned counsel appearing for the petitioner brought to my notice O.43, Rule 1(j). “an order under Rule 72 or Rule 92 of O.21, setting aside or refusing to set aside a sale”. As per the provisions of this rule, the Sub-Judge, Kallakurichi is not correct in dismissing C.M.A.No.11 of 1997 on the ground of maintainability. 7. He further pointed out that if at all the disposal of E.A.No.309 of 1998 by the Principal District Munsif, Kallakurichi should be taken as one under O.21, Rule 90 and not under any other provision. According to the learned counsel, the learned Judge improperly quoted the provision of law and thereby considering the said point, C.M.A.No.11 of 1997, is maintainable in the light of O.43, Rule 1, Civil Procedure Code and consequently the dismissal order passed by the Sub-Judge, Kallakurichi in C.M.A.No.11 of 1997 is incorrect and improper and the matter has to be remanded to the Sub-Judge, Kallakurichi for fresh disposal according to law on merits by entertaining C.M.A.No.11 of 1997. 8. In support of his contention, he relied upon the Principle laid down in the Full Bench decision reported in A.P.V.Rajendran v. S.A.Sundararajan and others, A.I.R. 1980 Mad. 123 (F.B.) and also relied upon the decision reported in S.A.Sundararajan v. A.P.V.Rajendran, A.I.R. 1981 S.C. 693. 9. Therefore, I am of view that the order passed by the Sub Judge Kallakurichi in C.M.A.No.11 of 1997 is not correct or proper and is liable to be set aside. Accordingly, this revision petition is allowed and the order of the Sub-Judge, Kallakurichi is set aside. The matter is remanded to the Sub-Judge, Kallakurichi for giving fresh disposal according to law, after restoring C.M.A.No.11 of 1997 to file, on merits and he is also directed to dispose of C.M.A.No.11 of 1996 within the three months from the date of receipt of this order.