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2004 DIGILAW 869 (MAD)

Kanakamani & Others v. Kittan @ Kittusamy

2004-07-12

V.KANAGARAJ

body2004
Judgment :- The above Civil Revision Petition is directed against the fair and decretal order dated 4.8.2003 made in E.P.No.354 of 2001 in O.S.No.737 of 1994 by the Court of I Additional Subordinate Judge, Erode. 2. Tracing the history of the above Civil Revision Petition coming to be filed before this Court, what comes to be known is that the petitioner as the plaintiff has filed the suit in O.S.No.737 of 1994 before the Court below for specific performance and alternatively for the return of the advance amount paid towards the intended purchase of the property in question; that the trial Court has declined to pass the decree for specific performance but alternatively ordered for the return of the advance amount in favour of the petitioner/plaintiff; that at this juncture, the petitioner is filing this application under Order 21 Rule 11(2) C.P.C for attaching the property and for bringing the same for auction, which has not been agreed by the trial Court and hence on a clear finding it has dismissed the application, it is only testifying the said fair and decretal order the petitioner/plaintiff has come forward to file the above Civil Revision Petition on certain grounds as brought forth in the grounds of revision. 3. During arguments, the learned counsel appearing on behalf of the petitioner would argue to the effect that from among the two properties, that property falling under S.No.21/3 was purchased outright and the other property falling under S.No.21/4 has been devolved on the respondent by means of assignment through issuance of patta in his favour and therefore, so far as the property in S.No.21/3 is concerned it could very well be attached and brought for sale which the lower Court has failed to do; that the lower Court cannot go beyond the decree and against the merit of the case at this stage and on such grounds would seek for the relief extracted supra. 4. On the other hand, the learned counsel appearing on behalf of the respondent would submit that the property is the very same property which was assigned by the Government to the downtrodden, which is also the subject matter of the suit and it is the same property that the petitioner now wants to bring for auction and therefore, the lower Court is justified in dismissing the application filed by the petitioner. On such arguments, the learned counsel would seek to dismiss the above Civil Revision Petition. 5. In consideration of the facts pleaded, having regard to the materials placed on record and upon hearing the learned counsel for both, this Court is able to find that the lower Court having declined to get a decree for specific performance relating to the suit properties, has granted with the alternative relief sought for in the suit for the return of the advance amount and to realise the same the petitioner has taken steps for attaching the suit property and for bringing the same for auction which is seriously objected to by the other side on ground that the very same property which was assigned by the Government to the downtrodden people, and the subject matter of the suit, the petitioner now wants to attach and to bring for auction, and hence the same cannot be attached. Moreover even the suit was not decreed for specific performance and on such grounds only the trial Court has ordered the return of the advance amount and therefore, the very same property regarding which specific performance was not granted since being a Government property allotted to the Harijans, the petitioner cannot bring the same for auction and therefore, in the circumstances what decision has been arrived at by the trial Court has been at the right line and this Court does not want to cause its interference into the well considered and merited order. 6. However, the learned counsel for the petitioner would come forward to make a request to the effect that he may at least permit to bring the property in S.No.21/3 for auction, which is said to be a property outright purchased by the respondent and absolutely there is no hindrance for ordering the said property to be attached and brought for sale nor to realise his amount due as per the decree. 7. 7. In consideration of this fact, while this Court declining to order the above Civil Revision Petition particularly because the petitioner has confused the whole lot conjoining the other property which is the land assigned by the Government to the downtrodden people which cannot be given at all, still, with the above plea made, this Court is of the view to give liberty to the petitioner to separate the property in S.No.21/3, which is said to be purchased by the respondent on outright sale and the lower Court shall entertain such an application if and when the petitioner files, applying the legal parameters,and proceed with the same in accordance with law so as to arrive at the decision in a valid manner. In result, (i) subject to the above observations, the above Civil Revision Petition is disposed of; (ii) however, in the circumstances of the case, there shall be no order as to costs; (iii) consequently, C.M.P.No.15655 of 2003 is closed.