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2012 DIGILAW 4773 (MAD)

Kandaswami v. Mottaiappan

2012-11-22

T.MATHIVANAN

body2012
JUDGMENT 1. Challenging the fair and decretal order dated 03.03.2006 in R.E.A.No.463 of 2004 in R.E.P.No.199 of 2004 in O.S.No.108 of 1999, (R.E.A.No.408 of 2004 in R.E.P.No.71 of 2000 in O.S.No.108 of 1999, on the file of Sub-ordinate Court, Namakkal, as amended under Tamil Nadu Act 1/2004) on the file of the learned Sub-ordinate Judge, Namakkal, this memorandum of civil revision petition is filed by the petitioner herein. 2. The facts which are necessary for the disposal of this civil revision petition are as under:- The first respondent herein has filed the suit in O.S.No.108 of 1999 on the file of the learned Sub-ordinate Judge, Namakkal as against this revision petitioner claiming a sum of Rs.87,850/- along with accrued interest. The revision petitioner has not chosen to contest the suit and therefore, he was called absent and set ex-parte and in consequent thereof, an ex-parte decree was also passed on 02.07.1999. 3. In pursuant to the decree, the first respondent herein has filed an execution petition in E.P.No.199 of 2004 (R.E.A.No.408 of 2004 in R.E.P.No.71 of 2000 in O.S.No.108 of 1999, Sub-ordinate Court, Namakkal, as amended under Tamil Nadu Act 1/2004) on the file of the learned Sub-ordinate Judge, Namakkal to attach the property belonging to the revision petitioner and bring the same for Court auction so as to realise the decree amount. That execution petition was allowed and in pursuant to the order passed in the execution petition, the property specified therein was brought to Court auction and it appears that the second respondent herein has purchased that property. In the meantime, the revision petitioner appears to have filed an insolvent petition in I.P.No.18 of 2003 on 08.04.2003 against the first respondent and other creditors and according to the revision petitioner that petition is still pending. After the purchase of the property by the second respondent herein through Court auction, the petitioner has filed an execution application under Order 21 Rule 19 r/w. Sec. 47 and 151 of Civil Procedure Code seeking the relief of setting aside the sale which was conducted on 17.12.2003 in favour of the second respondent in E.A.No.463 of 2004. After the purchase of the property by the second respondent herein through Court auction, the petitioner has filed an execution application under Order 21 Rule 19 r/w. Sec. 47 and 151 of Civil Procedure Code seeking the relief of setting aside the sale which was conducted on 17.12.2003 in favour of the second respondent in E.A.No.463 of 2004. The revision petitioner has contended that the first respondent had purchased 5 cents of land comprised in Survey No.119/2 in Komiripalayam village with a terraced building bearing door No.21/B-7 and the proclamation of sale was posted on 03.12.2003, despite the fact of pendency of insolvency petition filed by the revision petitioner in the execution application. He has also contended that in fact there is no such survey number as that of Survey No.119/2 in Komeripalayam village, in Mohanoor Sub R.D. and already the said survey number was divided into two compartments viz., 119/2A and 119/2B and a portion to an extent of 0.82 cents comprised in Survey No.119/2B was already sold to one Nalluswami with a well filed with 5 H.P. oil engine and also with a terraced building bearing door No.4/2-B. He has contended that he had retained 0.05 cents of land in survey No.119/2A in Iyyampalayam Komeripalayam village. He has also contended that he did not possess housing property bearing door No.21-B/7. It appears from the execution application filed by the revision petitioner that the proclamation sale was posted on 03.12.2003 and 10.12.2003 and thereafter, adjourned to 17.12.2003 without making any proper proclamation. 4. According to the revision petitioner, property which was brought for Court sale was worth about Rs.3 lakhs but it was sold for a feeble price to the second respondent herein i.e., a sum of Rs.1 lakh on 17.12.2003. Since there was discrepancy in sale proclamation, the sale has to be necessarily set aside or even he has contended that the sale effected in favour of the second respondent on 17.12.2003 was not in accordance with law and therefore, on this ground also, the sale dated 17.12.2003 in favour of the second respondent was bound to be set aside. 5. This was vehemently objected to by the first respondent. 6. 5. This was vehemently objected to by the first respondent. 6. After considering the contention and rival contention projected by both sides, the learned Sub-ordinate Judge has proceeded to dismiss the application filed by the revision petitioner on 03.03.2006 with a finding that there was no iota of evidence to show that the property which was brought for sale and sold to the second respondent was not belonged to the revision petitioner. Being aggrieved by the order of dismissal dated 03.03.2006 and made in E.A.No.463 of 2004, the revision petitioner who is the judgment debtor has approached this Court by way of filing this memorandum of civil revision. 7. This Court has carefully perused the averments of memorandum of revision as well as the execution application and the objections filed by the first respondent before the Court below. It is significant to note here that the revision petitioner has deliberately allowed the suit in O.S.No.108 of 1999 to be decreed ex-parte and he has not challenged the ex-parte decree by filing an appeal. The first respondent being the decree holder has filed the execution petition in E.P.No.199 of 2004 to realise the decree amount by way of selling the schedule mentioned property belonged to the revision petitioner herein through Court auction. It is apparently visible that the second respondent had purchased the property through Court auction. It is pertinent to note that the petitioner has contended that he had sold the property measuring 0.82 cents comprising survey No.119/2B to one Nalluswamy and that the property brought to sale was not belonging to him. It is also obvious to note here that the said Nallusamy never disputed or never challenged the sale in favour of the second respondent. On a meticulous analysis of the averments of the execution application as well as the grounds of revision, this Court is able to infer that the revision petitioner has purposely filed the execution application containing the allegations as if the property which was sold in Court auction in favour of the second respondent is not belonging to him. This Court is of the considered view that the revision petitioner has not justified and substantiated his contention that he is having no salable interest in the property sold on 17.12.2003. This Court is of the considered view that the revision petitioner has not justified and substantiated his contention that he is having no salable interest in the property sold on 17.12.2003. Under these circumstances, this Court would like to place it on record, that if really the revision petitioner has no salable interest in the property which was sold in the Court auction on 17.12.2003 what necessitated him to come forward with an execution application to set aside the sale. This question has not answered by the respondent. 8. Keeping in view of the above fact, this Court does not find any infirmity in the order passed by the Executing Court. Therefore, the Civil Revision Petition is liable to be dismissed. Accordingly, the Civil Revision Petition is dismissed. Consequently, connected Miscellaneous Petition is also closed. There shall be no order as to costs.