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2009 DIGILAW 3227 (MAD)

N. Lakshmi v. Munusamy

2009-08-18

M.VENUGOPAL

body2009
Judgment 1. The civil revision petitioner/petitioner/defendant has filed this civil revision petition as against the order dated 04.06.2008 in R.E.A No.121 of 2008 in R.E.P. No.3 of 2007 in O.S.No.18 of 2006 passed by the Learned District Munsif Court, Athur for dismissing the application filed under Order 21 Rule 69 of Civil Procedure Code praying to adjourn the sale by four weeks time. 2. The executing Court while passing orders in R.E.A No.121 of 2008 has come to the conclusion that "already in regard to the property the auction proceedings have been taken and the hearing has been posted today and to drag on the Court auction proceedings an application has been filed and consequently has dismissed the application as not maintainable, without costs. 3. According to the learned counsel for the revision petitioner/defendant the executing Court has not taken into account of the fact that the main suit is for recovery of money based on promissory note and the same has been decreed as Exparte and an application to set aside the same is pending and to proceed with the sale of the suit property is an illegal one and in fact the executing Court should not have proceeded with the sale of the property when an application to set aside the exparte decree is pending and as a matter of fact the property is worth more than Rs.1 lakh and to proceed against the same for a decree amount of Rs. 39,692.50 is an arbitrary and inconceivable one and these facultative aspects of the matter have not been adverted to, by the executing Court in a proper perspective and therefore prays for allowing the civil revision petition in furtherance of substantial cause of justice. 4. It is an axiomatic fact that the sale must be adjourned to a specified day and hour and omission to specify the hour is a material irregularity but in order to make the sale a nullity substantial injury must result thereby. An adjournment must be ordered before expiry of date fixed for sale. As a matter of fact the order adjourning the sale can be made either before or on the date of sale and not on any subsequent date. An adjournment must be ordered before expiry of date fixed for sale. As a matter of fact the order adjourning the sale can be made either before or on the date of sale and not on any subsequent date. If an adjournment is sought for by the judgment debtor on untenable and flimsy ground and with a view to delay the execution proceedings on merits of the matter necessary terms can be imposed by a Court of law and in an appropriate case he/she may also be asked to waive the condition in regard to the fresh proclamation. 5. As a matter of fact the order of the executing Court passed in R.E.A No.121 of 2008 dated 04.06.2008 refusing to postpone the sale by four weeks is an interlocutory one as per decision Kaveribai Ammal by Agent S.C. Narayana Rao Vs. B. Mehta and sons AIR 1924 Madras 234, and moreover, this Court also further opines that the granting or otherwise of adjournment relief is a discretionary one and viewed in that perspective the order of the executing Court passed in R.E.A No.121 of 2008 dated 04.06.2008 in refusing to postpone the sale by four weeks cannot be said to be an arbitrary and unjust one and in fact the same does not suffer from any serious infirmity or patent illegality and consequently the civil revision petition fails. 6. In the result the civil revision petition is dismissed. The order passed by the executing Court in R.E.A. No.121 of 2008 in R.E.P No.3 of 2007 in O.S. No.18 of 2006 is confirmed by this Court for the reasons assigned in this revision. Bearing in mind the facts and circumstances of the case, the parties are directed to bear their own costs in this revision.