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2019 DIGILAW 142 (MAD)

K. Kandasamy v. Jawahar

2019-01-10

R.THARANI

body2019
ORDER : Heard the learned counsel on either side. 2. This petition has been filed against the order passed in E.A.No.45 of 2015 in E.P.No.21 of 2006 in O.S.No.254 of 2002 dated 05.03.2015 on the file of the learned I Additional Subordinate Judge, Madurai and consequential direction to the 4th respondent to remove the endorsements in the encumbrance register. 3. The petitioner is a third party to the suit. The second respondent is the plaintiff. The third respondent is the defendant. The second respondent filed the suit against the third respondent for recovery of money on the basis of a mortgage decree. The second respondent got the decree in his favour. He filed E.P.No.21 of 2006 in O.S.No.254 of 2002. The first respondent is the auction purchaser. 4. The petitioner herein is the plaintiff and the third respondent herein is the first defendant in the suit in O.S.No.155 of 2004 before the learned II Additional Sub Judge, Madurai, the petitioner filed the suit seeking for a prayer of specific performance. The suit was decreed in favour of the revision petitioner and the revision petitioner filed an execution petition in E.P.No.166 of 2008 and the learned II additional Sub Judge, Madurai directed for execution of the sale deed on 05.08.2013. The sale deed was executed in favour of the revision petitioner on 14.08.2013. 5. On the side of the revision petitioner, it is stated that the revision petitioner was put in possession on 28.04.1999 itself as he has paid 99% of sale consideration as advance and that the second respondent herein has filed a suit in O.S.No.254 of 2002 before the learned I Additional Sub Judge, Madurai for recovery of money on an alleged mortgage against the third respondent herein and She has also filed an E.P.No.21 of 2006 for sale. Without taking note of the final decree passed in O.S.No.155 of 2004, a public auction was conducted on 03.11.2008. Without notice to the petitioner, auction was conducted on 03.11.2008 but sale certificate was not issued. The first respondent has filed E.A.No.45 of 2015 in E.P.No.21 of 2006 on 27.01.2015 impleading this petitioner as a party. Without taking note of the final decree passed in O.S.No.155 of 2004, a public auction was conducted on 03.11.2008. Without notice to the petitioner, auction was conducted on 03.11.2008 but sale certificate was not issued. The first respondent has filed E.A.No.45 of 2015 in E.P.No.21 of 2006 on 27.01.2015 impleading this petitioner as a party. The case was posted to 05.03.2015 for filing counter but the Court without taking into consideration that already a sale deed in respect of the very same property was executed on 14.08.2013 has issued an impugned sale certificate on 05.03.2015 and has directed the fourth respondent to make necessary enteries. 6. On the side of the petitioner, it is stated that the impugned order dated 05.03.2015 is subsequent to the sale executed by the Court in respect of the same property in E.P.No.166 of 2008. On the side of the revision petitioner, it is stated that even before issuance of the sale certificate in favour of the first respondent, the petitioner has obtained a sale certificate on 14.08.2013. It is stated that the suit of the second respondent is only based on a mortgage and the suit is only for money whereas the claim of the petitioner is for specific performance which is for the particular property. Even in the year 1999 itself, the revision petitioner was put in to possession of the property by the third respondent as the revision petitioner has paid almost 99 % of the sale consideration as advance and that the third respondent has not filed any appeal against the petitioners case in O.S.No.155 of 2004 and that the respondents' right of money is not larger than the specific the right of the revision petitioner. 7. The learned counsel appearing for the petitioner relied on the Judgment passed by the Hon'ble Supreme Court in the case of Guruswamy Nadar v. P.Lakshmi Ammal by L.R.s and Ors., reported in AIR 2008 SUPREME COURT 2560, which reads as follows: “Effect of, on subsequent sale of same property by owner to second purchaser-Second sale was effected after filing of suit for specific performance by first vendee-Principle of lis pendens will apply notwithstanding fact that right of subsequent purchaser could be protected under Section 19(b).” 8. On the side of the respondents, it is stated that the second respondent has filed a mortgage suit and that the mortgage was registered on 13.05.1998 and that the second respondent has filed a suit in the year 2002 and has obtained a preliminary decree. The first respondent is the third party auction purchaser. E.A.No.45 of 2015 filed by the second respondent was not pressed by filing a memo and the sale certificate was confirmed. It is stated that the petitioner is alleged to have entered into a sale agreement with the third respondent through his power Agent and that a forged sale receipt was created and that the power deed was cancelled and that the agreement becomes null and void. 9. From the contention of both sides, it is clear that on 13.05.1998, the third respondent has executed a mortgage deed in favour of the second respondent and then the third respondent executed a power of attorney in favour of one Pitchai on 28.04.1999. On 13.05.1998 the third respondent has executed a mortgage deed. Subsequently, his power agent has executed a sale agreement in favour of the revision petitioner on 28.04.1999. On 29.11.1999, the power deed was cancelled by the third respondent. On 04.03.2002, the second respondent has filed a suit in O.S.No.254 of 2002 for recovery of money. The third respondent has filed a written statement on 27.07.2004 stating that he has discharged the loan on 20.08.2001 itself. A preliminary decree was passed on 30.04.2002 in O.S.No.254 of 2002. The second respondent has filed E.P.No.21 of 2006 in O.S.NO.254 of 2002 on 28.10.2005. 10. Subsequently, O.S.No.155 of 2004 was filed by the revision petitioner seeking a prayer of specific performance based on the sale agreement and the decree in O.S.No.254 of 2002 was passed on 15.09.2004. The revision petitioner got a decree on 10.06.2008, based on the no objections given by the respondents. 11. It is seen that the third respondent is the original owner of the property. Two suits are filed against the same property. One suit is for mortgage and the other suit is for specific performance. In both the cases, sale certificates were issued by the Court in favour of two different persons in pursuance of two different suits. 12. It is stated that on 13.05.1998, the third respondent has executed a mortgage deed in favour of the second respondent. One suit is for mortgage and the other suit is for specific performance. In both the cases, sale certificates were issued by the Court in favour of two different persons in pursuance of two different suits. 12. It is stated that on 13.05.1998, the third respondent has executed a mortgage deed in favour of the second respondent. The second respondent filed a suit for recovery of money in O.S.No.254 of 2002, a preliminary decree was passed on 30.04.2002. Final Decree was passed on 15.09.2004. 13. In the meanwhile, the third respondent executed a general power of Attorney in favour of one Pitchai, who in turn executed a sale agreement in favour of the petitioner on 28.04.1999. The petitioner filed a suit for specific performance in O.S.No.155 of 2004. The power Agent, Pitchai has no objections in decreeing the suit. The petitioner obtained a decree on 10.06.2008. The petitioner filed an Execution petition in E.P.No.166 of 2008 in O.S.No.155 of 2004. The sale deed was registered through the Court on 03.11.2008. 14. Prior to the filing of the above said E.P., the second respondent filed an execution petition against the third respondent in E.P.No.21 of 2006 for sale of the suit property. A public auction was conducted on 03.11.2008. The first respondent is the auction purchaser. Before Sale certificate was issued, the first respondent filed E.A.No. 45 of 2015 in E.P.No.21 of 2006 to implead the petitioner. When the petition was posted for filing counter on 05.03.2015, the first respondent not pressed the E.A.No.45 of 2015 and the sale certificate was issued on 05.03.2015. 15. It is seen that the mortgage was in the year 1998, prior to the sale agreement of the year 1999. Money suit in O.S.No.254 of 2002 was decreed in the year 2000 and the suit for specific performance in O.S.No.155 of 2004 was decreed on 10.06.2008. Sale certificate in O.S.No.155 of 2004 in favour of the petitioner was issued on 14.08.2013. The sale deed in O.S.No.254 of 2002 was issued on 05.03.2015. 16. The contention of the respondent is that the sale agreement in favour of the revision petitioner is executed by the power Agent and that the sale receipt was forged one and that the power deed in favour of that Pitchai was cancelled by the third respondent on 04.03.2002 and that the sale against becomes null and void. 17. 16. The contention of the respondent is that the sale agreement in favour of the revision petitioner is executed by the power Agent and that the sale receipt was forged one and that the power deed in favour of that Pitchai was cancelled by the third respondent on 04.03.2002 and that the sale against becomes null and void. 17. On the side of the petitioner, it is stated that the power Agent has represented that there was no objections in decreeing the suit in O.S.No.155 of 2004 and that the third respondent has not filed any appeal against the decree and that the possession was handed over to the petitioner by the third respondent on 28.04.1999 itself as the petitioner has paid almost 99 % of the sale consideration as advance and that the sale deed is valid. 18. On the side of the petitioner, it is stated that in the written statement filed by the third respondent, in O.S.No.254 of 2002, it is stated that the third respondent has discharged the mortgage loan on 20.08.2001 itself. Whether the mortgage loan was discharged by the third respondent, whether the sale agreement is valid are question of factual matrix which cannot be decided in this revision. 19. The sale deed in favour of the petitioner was executed by the Court in the year 2013. The sale deed executed by the Court in favour of the first respondent is a subsequent sale of the year 2015. Though the first respondent filed a petition to implead the petitioner in E.A.No.45 of 2015, he has subsequently not pressed the petition thereby preventing this petitioner to put forth his case. Only by not pressing E.A.No.45 of 2015, the first respondent has got the sale certificate registered. 20. The first respondent is only an auction purchaser. He has no other personal right in the suit property. The second respondent claim is only recovery of money. He had no other personal right over the suit property. But the petitioner has got a specific decree against the suit property. Of course, the sale in favour of the petitioner is subject to the mortgage rights of the second respondent. The revision petitioner has submitted before this Court that he is ready to pay the decree amount in O.S.No.254 of 2002 with subsequent interest and cost. 21. But the petitioner has got a specific decree against the suit property. Of course, the sale in favour of the petitioner is subject to the mortgage rights of the second respondent. The revision petitioner has submitted before this Court that he is ready to pay the decree amount in O.S.No.254 of 2002 with subsequent interest and cost. 21. In the above circumstances, when there are two sale deeds from Courts regarding the same property, the person who seeks remedy over the specific property and who is having the earlier sale deed is to be considered and preference to be given to his right. In the above circumstances, the revision petitioner who purchased the property has stepped into the shoes of his vendor and he must be given an opportunity to redeem the property purchased by him. In the above circumstances, it is decided that the impugned order in in E.A.No.45 of 2015 in E.P.No.21 of 2006 in O.S.No.254 of 2002 is to be set aside and the sale certificate is to be cancelled on condition that the petitioner has to deposit the E.P. amount with subsequent interest and cost before the E.P. Court within a period of three weeks from the date of receipt of copy of this order. On such deposit, the trial Court has to decide the quantum eligible for the respondents 1 and 2 and to disburse the amount proportionately as per law and to dispose of the E.P. within a period of three months from the date of such deposit. 22. With the above direction, this Civil Revision Petition is disposed of. No Costs. The stay order in M.P.(MD)No.2 of 2015 is to be maintained till the disposal of the execution petition in E.P.No.21 of 2006. Consequently, with the above direction, C.M.P. (MD)No.3071 of 2016 also is closed.