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2009 DIGILAW 5228 (MAD)

M. K. Kannaiyan & Another v. Saroja

2009-12-01

P.P.S.JANARTHANA RAJA

body2009
Judgment The petitioners are the Judgment Debtors 2 and 3/Defendants and the respondent is the decree holder/Plaintiff. The respondent/document holder filed a suit in O.S.No.366/01 before the Sub-Court, Sankagiri alleging that the father of the petitioners borrowed a sum of Rs.50,000/- by executing a promissory note and failed to repay the amount. Subsequently, the father of the petitioner died on 16.09.1999. Therefore, the respondent filed a suit against the petitioners for recovery of pro note amount. The above suit was transferred to Sub-Court, Namakkar and later the same was transferred to the District Munsif Court, Tiruchengode. Subsequently, the same was decreed on 27.09.2004. Further, when the suit was pending before the Sub-Court, Sankagiri, the respondent/plaintiff filed a petition for attachment in I.A.No.1288/2001. The said property is that S.No.905 extent 0.0200 sq.m. tiled house bearing D.Nos.4/403 and 4/403-4 of Pallipalayam Agrharam village, Tiruchengode Taluk, Namakkal District. Subsequently, the respondent/plaintifff filed a REP.No.60/2005 for sale of petition property for realization of the decree amount. The petitioner/defendant resisted and stated that the respondent/plaintiff trying to sell the property through Court auction, which is not attached by the Court on the ground that there is a discrepancy in the Survey number. The correct Survey number is 90/5 but wrongly stated as 905. The respondent/plaintiff also filed a counter stating that there is only a mistake in survey no. It should be S.No.90/5 instead of 905, which is only a typographical error and also further submitted that there is no dispute regarding the description of the property, like D.Nos. and village are same. Further stated in the counter that the Court got power under Section 51(b) of CPC to execute the decree by sale without attachment of any property. After considering the arguments on either side, the trial Court dismissed the REA.No.153 and 167 of 2008 on the ground that there is no discrepancy and also relied on Section 51(b) of CPC. Aggrieved by that order, the present two revisions filed. One is against dismissal and another one is against stay of the order. 2. The learned counsel appearing for the petitioners/defendants submitted the trial Court erred in dismissing the petitions without properly considering the facts and circumstances of the case. Further submitted that the trial court ought to have held that the respondent has brought the property for sale in execution proceedings without even getting the order of the attachment corrected. 2. The learned counsel appearing for the petitioners/defendants submitted the trial Court erred in dismissing the petitions without properly considering the facts and circumstances of the case. Further submitted that the trial court ought to have held that the respondent has brought the property for sale in execution proceedings without even getting the order of the attachment corrected. The trial Court failed to see that the property attached and the property now brought for sale in the execution proceeding are totally different. Also further submitted that the sale proceedings initiated against the respondent is not in accordance with law and the execution petition is liable to be dismissed and further submitted that there is no proper attachment in respect of the property in S.No.90/5 and therefore, the Court cannot order sale of the property in execution petition. Therefore, the order passed by the trial Court is not in accordance with law and the same has to be set aside. 3. Learned counsel appearing for the respondent/plaintiff submitted that the trial Court has considered all the facts and circumstances of the case and came to a correct conclusion. Also, he relied on the Section 51(b) of CPC. Therefore, the order passed by the trial Court is accordance with law and the same should be confirmed. 4. Heard the learned counsel appearing on either side and perused the material available on record. There is no dispute that the Survey number was mistakenly typed as 905 instead of 90/5. This is only a typographical error. In respect of other particulars with regard to the description of property like D.Nos. and village are same. The petitioners are the judgment debtors and they are liable to pay the decreed amount. The Section 51(b) of CPC is as follows; "Subject to such conditions and limitations as may be prescribed, the Court, may, on the application of the decree holder, order execution of the decree;- a) by delivery of any property specifically decreed; b) by attachment and sale or by sale without attachment of any property; ........" In view of Section 51(b) of the Code, the property can be attached and even without attachment of the property, a decree can be executed, by bringing the property of judgment debtor for sale. In view of the above provision, it is clear that the Court can order execution of the decree by sale without attachment of the property. In view of the above provision, it is clear that the Court can order execution of the decree by sale without attachment of the property. In the case of D.V. ATHISAYARAJ Vs. TIRUNELVELI DIOCESE TRUSE ASSOCIATION, TIRUNELVELI reported in 2006(1)CTC 526, wherein para 23 held as follows; "23. The attachment is not so essential to bring the property for sale also could be seen from the grounds made available to the judgment debtor, to set aside the sale, on the ground of irregularity or fraud. Under Rule 90 of Order 21 of the Code, by way of explanation, it is said, "the mere absence of, or defect in, attachment of the property sold shall not, by itself, be a ground for setting aside a sale under this rule", thereby indicating, if there was any defect in the proceedings adopted for attachment, that will not invalidate the sale, thereby showing in a way that even in the absence of attachment, the property could be brought for sale. In my opinion, in this view alone, the explanation could have been included, under Rule 90 of Order 21 of the Code, thereby showing attachment is not essential, always to bring the property for sale. If the attachment is the main criterion, to bring the property for sale, as claimed by the revision petitioner, then while cataloging the grounds to set aside the sale, any defect in attachment of the property sold, should have been shown, as the main ground for setting aside the sale, which is not. On the other hand, exemption is given for the defect, if any, in the attachment of the property sold in execution of the decree. Thus, viewing the case from this angle also, the reasons assigned by the Rajasthan High Court, in the above said decision is well acceptable and therefore the observation therein "a decree can be executed by sale of the property of the judgment debtor without first attaching it in view of the specific provisions of Section 51 of the Code, such a sale is no ipso facto invalid" is to be accepted." After taking into consideration of the facts and circumstances of the case and also the principle enunciated in the above judgment, the trial Court came to a correct conclusion and dismissed the petitions. Under these circumstances, I dont find any error or illegality in the order passed by the trial Court. Under these circumstances, I dont find any error or illegality in the order passed by the trial Court. It is a question of fact. It is not a perverse order and the finding rendered by the trial Court is in accordance with law and the same is hereby confirmed. 5. In the result, the Civil Revision Petitions are dismissed. No Costs. Consequently, connected M.P.No.1 of 2009 is closed.