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2012 DIGILAW 1108 (MAD)

R. Vijaya v. A. Mohanraj

2012-02-29

R.S.RAMANATHAN

body2012
Judgment :- The defendant in O.S.No.595 of 2005 on the file of the District Munsif Court, Namakkal is the revision petitioner. 2. The respondent filed the above suit for recovery of a sum of Rs.84,840/- and the suit was decreed. During the pendency of the suit, the respondent/plaintiff filed an application in I.A.No.1587 of 2005 for attachment of the property giving survey numbers, extent and boundary and attachment before the judgment was ordered and after decree was passed on 05.12.2005, the respondent/plaintiff filed an application to bring the property for sale and the sale was conducted and the property was purchased by one K.Arumugam in the Court auction held on 24.10.2007. The sale was also confirmed in favour of the auction purchaser. Thereafter, the respondent/plaintiff filed I.A.No.535 of 2010 in I.A.No.1587 of 2005 stating that inadvertently wrong survey number was given in the application for attachment of the property before the judgment and therefore the schedule of property in the application filed in I.A.No.1587 of 2005 has to be amended and that application was allowed by the Court below and aggrieved by the same, this revision is filed by the revision petitioner. 3. The learned counsel for the revision petitioner submitted that after the sale in favour of the auction purchaser, the decree-holder cannot file an application for amendment of schedule in the application filed to attach the property before the judgment and only the auction purchaser is competent to file an application under order 21 Rule 91 of Civil Procedure Code stating that the judgment-debtor has no salable interest in the property sold. On the ground that the the description of the survey numbers was wrongly given, the application filed by the plaintiff/respondent is not maintainable and relied upon the Judgment reported in 2000(3) SCC 87 , Kadiyala Rama Rao v. Gutala kahna Rao (dead) by LRS. and others. 4. On the other hand, the learned counsel appearing for the respondent submitted that it is only a typographical error in describing the property and as per the schedule given in I.A.No.1587 of 2005 instead of S.No.2/2A1A of an extent of 0.6592.0 square meters, it is mentioned as S.No.444/2, T.S.No.2/1,2A1, 2A2, 2A3, 2B and there is no change in the boundaries described in the schedule and having considered the same, the Court below has allowed the application, as it is only a typographical error. He further submitted that only after correcting the schedule in the application in I.A.No.1587 of 2005, further proceedings can be taken to amend the schedule in the sale and therefore no prejudice would be caused to the revision petitioner if the survey numbers are amended. 5. I am unable to accept the contention of the learned counsel for the respondent. Admittedly, the property was attached before the judgment and thereafter, the property was brought for sale and it was purchased by the auction purchaser as per the schedule given in I.A.No.1587 of 2005. The property is comprised in S.No.445, 444/2, T.S.Nos.2/1, 2A1, 2A2, 2A3, 2B, with specific measurement and boundaries and total extent is 1420 sq.ft. In E.P.167 of 2007, which has been filed to execute the decree, the same extent was given with the same survey numbers. Now in this application, the respondent wants to delete S.Nos.444/2 T.S.Nos.2/1, 2A1, 2A2, 2A3 and 2B and to substitute T.S.Nos.2/2A1A. 6. It is submitted by the learned counsel for the respondent that the extent of 1420 sq.ft. as per the description of property given in the attachment before the judgment the application in I.A.No.1587 of 2005 has been wrongly given and the correct survey number is S.No.445, T.S.No.2/2A1A. 7. It is not the case of the respondent that the survey numbers given in the schedule of property in I.A.No.1587 of 2005 has been co-related to S.No.2/2A1A. Therefore, now the property which is sought to be substituted in the application in I.A.No.1587 of 2005, is a different property and therefore, different consideration would arise whether the revision petitioner has got any right over the property and whether the property can be attached. All these questions cannot be considered after the sale of the property in execution of the decree. 8. If really, the judgment debtor has no salable interest in the property sold, it is open for the auction purchaser to approach the Court by invoking Order 21 Rule 91 of Civil Procedure Code and the Court can set aside accepting the case of the auction purchaser. The court can set aside the sale and it is not open to the decree-holder to seek aid of the Court to amend the schedule given in the application for attachment before the judgment. 9. Hence, the order of the Court below is set aside and the revision is allowed. No costs. The court can set aside the sale and it is not open to the decree-holder to seek aid of the Court to amend the schedule given in the application for attachment before the judgment. 9. Hence, the order of the Court below is set aside and the revision is allowed. No costs. Consequently, connected Miscellaneous Petition is closed.