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2009 DIGILAW 4179 (MAD)

Venkatachalam v. Prema & Another

2009-10-09

M.VENUGOPAL

body2009
Judgment :- Common Order: The petitioner/first respondent/plaintiff has filed these civil revision petitions as against the order dated 26.04.2004 in E.A.No.425 of 2004 filed by the first respondent/third party has inter alia observed that the auction taken by the petitioner in respect of the E.P.No.130 of 2003 is not valid in law and the same is liable to be cancelled and resultantly, allowed the said Execution Application with costs. 2. According to the learned counsel for the revision petitioner, the order of the trial Court passed in E.A.No.425 of 2004 is contrary to law and as a matter of fact, the trial Court has not taken into account that the revision petitioner has got a valid mortgage decree against the second respondent, which will be prevailed over the order of attachment before judgment passed in other proceedings and indeed, mortgage decree is earlier to the order of attachment before judgment obtained by the first respondent and the trial Court has ignored an important fact that the revision petition has taken the property in Court auction sale only with the previous permission of the Court, which was valid in the eye of Law and further observation of the trial Court that there was collusion between Decree Holder and the judgment debtor arrayed as a party to the suit is not correct and the same is without any basis and therefore, prays for allowing the civil revision petition to promote substantial cause of justice. 3. When this Court posed a query to the learned counsel for the revision petitioner as to the maintainability of the civil revision petition, the learned counsel for the revision petitioner seeks in aid of the decision of this Court in Indiabulls Finance Services Ltd. v. Jubilee Plots and Housing Pvt. Ltd. 2009 (3) CTC 64 at page 72, wherein at para 25 it is observed as follows; "Upon a review of decided cases and a survey of the occasions, wherein the High Courts have exercised jurisdiction to command a Writ of Certiorari or to exercise supervisory jurisdiction under Article 227 in the given facts and circumstances in a variety of cases, it seems that the distinction between the two jurisdictions stands almost obliterated in practice. Probably, this is the reason why it has become customary with the lawyers labelling their petitions as one common under Articles 226 and 227 of the Constitution, through such practice has been deprecated in some judicial pronouncement. Without entering into niceties and technicality of the subject, we venture to state the broad general difference between the two jurisdictions. Firstly, the writ of certiorari is an exercise of its original jurisdiction by the High Court; exercise of supervisory jurisdiction is not an original jurisdiction and in this sense it is akin to appellate, revisional or corrective jurisdiction. Secondly, in a writ of certiorari, the record of the proceedings having been certified and sent up by the inferior Court or tribunal to the High Court, the High Court if inclined to exercise its jurisdiction, may simply annul or quash the proceedings and then do no more, In exercise of supervisory jurisdiction , the High Court may not only quash or set aside the impugned proceedings, judgment or order but it may also make such directions as the facts and circumstances of the case may warrant, maybe, by way of guiding the inferior Court or tribunal as to the manner in which it would now proceed further or afresh as commended to or guided by the High Court. In appropriate cases the High Court, while exercising supervisory jurisdiction, may substitute such a decision of its own in place of the impugned decision, as the inferior Court or tribunal should have made. Lastly, the jurisdiction under Article 226 of the Constitution is capable of being exercised on a prayer made by or on behalf of the party aggrieved; the supervisory jurisdiction is capable of being exercised suo motu as well." 4. However, the learned counsel for the first respondent submits that the civil revision petition filed by the revision petitioners as against the orders passed in E.A.No.425 of 2004 dated 26.04.2004 is not maintainable because of the fact that in an is application filed under Order 21 Rule 90, of Civil Procedure Code. However, the learned counsel for the first respondent submits that the civil revision petition filed by the revision petitioners as against the orders passed in E.A.No.425 of 2004 dated 26.04.2004 is not maintainable because of the fact that in an is application filed under Order 21 Rule 90, of Civil Procedure Code. To lend support to his contention that appeal is the only remedy for the civil revision petitioner he relies on the decision of this Court in Pannerselvam v. Muthukrishna Naidu 2004 3 MLJ 504 wherein it is held that; "though the application is filed under Section 47 of the Civil Procedure Code, requirements of that provision are not present and the appeal filed by the auction purchaser is maintainable." 5. Also he relies on the Full Bench decision of this Court in A.P.V. Rajendran v. S.A. Sundararajan and Others AIR 1980 Madras 123 wherein it is among other things observed that, "if the sale is sought to be set aside on the ground of material irregularity in publishing and conducting the sale within the meaning of Order 21, Rule 90, then Section 47 cannot come into play at all, and the sale could be set aside only by invoking Order 21, Rule 90. But if the sale is claimed to be void for certain illegality or voidable on ground of material irregularities not referred to in Order 21, Rule 90 then Section 47 has to be invoked and in such cases Order 21, Rule 90 of Civil Procedure Code cannot come into play at all." 6. On a careful consideration of respective contentions and inasmuch as E.A.No.425 of 2004 dated 26.04.2004 has been filed before the Executing Court under Order 22 Rule 90 of the Civil Procedure, then the remedy open to the revision petitioner in Law is to prefer an appeal and not to file the present revision petitions and on this simple ground of maintainability, this Court comes to the conclusion that the civil revision petition is per se not maintainable in the eye of Law and thus, the civil revision petitions fail. 7. Resultantly, the civil revision petitions are dismissed. Considering the facts and circumstances of the case, the parties are directed to bear their own costs. 7. Resultantly, the civil revision petitions are dismissed. Considering the facts and circumstances of the case, the parties are directed to bear their own costs. It is also made clear by this Court that the dismissal of the civil revision petitions will not preclude the revision petitioners to take necessary steps in the manner known to Law before the competent forum.