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Madras High Court · body

2007 DIGILAW 2080 (MAD)

S. Gopal v. Ponnusamy

2007-07-09

M.CHOCKALINGAM

body2007
Judgment :- A challenge is made to an order of dismissal made by the learned Subordinate Judge, Tiruppur in E.A.No.121 of 2006 in E.P.No.53 of 2000 laid in pursuance of the money decree passed in O.S.No.346 of 1999. 2. The court heard the learned counsel on either side. Concedingly, the revision petitioner obtained a decree in O.S.No.346 of 1999, a suit on promissory note. After passing the decree, E.P.No.53 of 2000 was laid for realisation of the amount by bringing certain immovable properties for sale. At the earliest, counter was filed, stating that the properties, which are brought for sale, did not belong to the judgment debtor. Despite the same, E.P. was proceeded with and sale was made. The decree holder was the auction purchaser. At this juncture, the instant E.A.No.121 of 2006 was filed, seeking amendment of execution petition and also the sale certificate in respect of discrepancy in the property description of the immovable property found therein. On contest, the said application was dismissed. Aggrieved the decree holder has brought forth this revision petition before this court. 3. After hearing the learned counsel on either side, the court is of the considered opinion that the court has no option than to dismiss the civil revision petition. The decree holder, in order to realise the amount found in the decree, brought certain immovable properties for attachment and sale and the property was described in the schedule annexed to the E.P. At the earliest, the respondent/judgment debtor made a plea that it was not his property, but the property of the third party. Despite the same, the order of attachment was made and following the same, the property has also been sold and the decree holder has purchased the property in a court auction sale. After getting the sale certificate and when he also took the delivery of the property, a mistake was found that the property, which was attached and sold, belonged to the third party. After finding the same, the instant application was filed seeking amendment of the original E.P. in respect of the property description and in the sale certificate also. The lower court, after pointing out the reasons, dismissed the application and rightly too. 4. When the decree holder brought the property for sale, a specific objection was also raised that it was not the property of the judgment debtor. The lower court, after pointing out the reasons, dismissed the application and rightly too. 4. When the decree holder brought the property for sale, a specific objection was also raised that it was not the property of the judgment debtor. Hence, it is for the decree holder to find out and verify the same and then, he should have sought for attachment, but he got attachment of the property of the third party and apart from that he has also brought for sale and proclamation has been made and he purchased the property. The amendment what was sought for was only in respect of two boundaries, out of four. The court is at a loss to understand that if factually two sides were amended, the entire property would be different. Here, not only the judgment debtor filed counter, but also there was admission made by the petitioner/decree holder in the course of the affidavit that he was unaware of the property belonged to the third party and he came to know about the same later. Under these circumstances, the contention put forth by the learned counsel for the petitioner is that it was a mistake committed by the counsel. Now, it has to be pointed out that even if the mistake was committed by the counsel or the party or even if it was the mistake committed by the court, now what has got to be seen is that whether the property, which was brought for sale, was of the person, who was liable to meet the decree amount, but in the instant case, the property, what was brought for sale and purchased by the petitioner herein, belonged to the third party. Under these circumstances, no question of maintaining any one of the contentions would arise. Thus, all the contentions put forth before the court below and equally here also do not merit acceptance and hence, they are to be rejected. Accordingly, this civil revision petition is dismissed. No costs. Consequently, connected MP is also dismissed.