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2022 DIGILAW 2681 (MAD)

Dinesh Kumar Jain v. N. Ramesh

2022-08-12

SATHI KUMAR SUKUMARA KURUP

body2022
JUDGMENT (Common Prayer: These Civil Revision Petitions have been filed under Article 227 of the Constitution of India to set aside the impugned fair and decreetal order dated 18.08.2021 passed in E.A.Nos.51 & 52 of 2021 in E.P.Nos.73 & 74 of 2011 in RCOP Nos.22 & 23 of 2010 on the file of the learned Additional District Munsif, Vellore.) Common Order 1. Both the Civil Revision Petitions have been filed under Article 227 of the Constitution of India seeking to set aside the impugned fair and decreetal order dated 18.08.2021 passed in E.A.Nos.51 & 52 of 2021 in E.P.Nos.73 & 74 of 2011 in RCOP Nos.22 & 23 of 2010 on the file of the learned Additional District Munsif, Vellore. 2. It is the submission of the learned Counsel for the Petitioner that Petitioner had been a tenant under the landlord. While so, the landlord had obtained loan from the Indian Bank. He had committed default. Therefore, as per the SARFAESI provisions, the property was brought to public auction. The Petitioner who was a tenant under the landlord participated in the public auction and he was the successful bidder. Therefore, Sale Certificate issued to him, he had taken possession. At that stage, the erstwhile landlord who had not cleared the mortgage had entered into Sale Agreement with the Respondent had executed Sale Deed in his favour. The Respondent herein, had instituted a Suit to declare the Sale Certificate in favour of the Petitioner herein as null and void. Subsequently, he filed a Petition to withdraw the Suit. The Petitioner herein as Respondent filed counter claim objecting to the withdrawal of Suit to withdraw the Suit in O.S.No.242 of 2010. The Petition was dismissed and counter claim was allowed. Against the order of dismissal of I.A.No.49 of 2018 in O.S.No.242 of 2010, Civil Revision Petition in C.R.P.No.3234 of 2018 had been filed. In that Civil Revision Petition also, the order of the trial Judge dismissing the Petition to withdraw the Suit, allowing the counter claim was confirmed. The Respondent had approached the Hon'ble Supreme Court of India by way of Special Leave Petition (Civil) Nos.18915 to 18923 of 2021 against the common order passed by this Court in C.R.P.(NPD) Nos.2723 & 2724 of 2015 and C.R.P.(PD) Nos.3361 & 3362 of 2015, and the same was also dismissed. The Respondent had approached the Hon'ble Supreme Court of India by way of Special Leave Petition (Civil) Nos.18915 to 18923 of 2021 against the common order passed by this Court in C.R.P.(NPD) Nos.2723 & 2724 of 2015 and C.R.P.(PD) Nos.3361 & 3362 of 2015, and the same was also dismissed. Therefore, the Petitioner herein had approached Execution Court seeking possession of the property to permit the Petitioner under Section 144 C.P.C by filing a Petition in E.A.No.51 of 2021 in E.P.No.73 of 2011 and the same was dismissed. Therefore, the Petitioner had approached this Court by way of Revision Petition. The Section 144 C.P.C is extracted hereunder: 144.Application for restitution - 1)Where and in so far as a decree ( or an order ) is (varied or reversed in any appeal, revision or other proceedings or is set aside or modified in any suit instituted for the purpose, the Court which passed the decree or order) shall, on the application of any party entitled to any benefit by way of restitution or otherwise, cause such restitution to be made as will, so far as may be, place the parties in the position which they would have occupied but for such decree (or order) or (such part thereof as has been varied, reversed, set aside or modified) and, for this purpose, the Court may make any orders, including orders for the refund of costs and for the payment of interest, damages, compensation and mense profits, which are properly ( consequential on such variation, reversal, setting aside or modification of the decree or order). [Explanation - For the purposes of sub-section (1), the expression "Court which passed the decree or order" shall be deemed to include – a) Where the decree or order has been varied or reversed in exercise of appellate or revisional jurisdiction, the Court of first instance; b) where the decree or order has been set aside by a separate suit, the Court of first instance which passed such decree or order; c) where the Court of first instance has ceased to exist or has ceased to have jurisdiction to execute it, the Court which, if the suit wherein the decree or order was passed were instituted at the time of making the application for restitution under this section, would have jurisdiction to try such suit.] 2) No suit shall be instituted for the purpose of obtaining any restitution or other relief which could be obtained by application under sub-section (1). 3. The learned Counsel for the Respondent submitted his arguments. As per his submissions, it is the submission of the learned Counsel for the Petitioner that four Revision Petitions were taken up together and disposed of by a Common Order dated 11.03.2021. All the four Civil Revision Petitions were allowed and the orders passed in E.P.No.73 of 2011 in RCOP.No. 22 of 2010 on the file of the learned Additional District Munsif, Vellore were set aside with the direction to dispose of the rent control proceedings in RCOP No. 22 of 2010 on merits and in accordance with law within a period of three months from the date of receipt of copy of the order. Therefore, the learned Counsel for the Respondent submitted that this Petition has no merits and it has to be dismissed. 4. On consideration of the rival submissions it is found that the submission of the learned Counsel for the Petitioner is found acceptable in the facts and circumstances of the case. The Petitioner herein was the tenant. The landlord having obtained loan from the Indian Bank and had committed default. Therefore, the Indian Bank had proceeded against the landlord under the provisions of SARFAESI Act. When the property was brought to sale by public auction the tenant/Petitioner herein participated in the public auction and he was the successful bidder. Therefore, Sale Certificate was issued in favour of the Petitioner herein. Therefore, the Indian Bank had proceeded against the landlord under the provisions of SARFAESI Act. When the property was brought to sale by public auction the tenant/Petitioner herein participated in the public auction and he was the successful bidder. Therefore, Sale Certificate was issued in favour of the Petitioner herein. At that stage, landlord, who had cleared the mortgage, entered into Sale Agreement with the Respondent to clear the mortgage, as well as the landlord executed the Sale Deed in favour of the Respondent and instituted a Suit to declare the Sale Certificate in favour of the Petitioner in Civil Revision Petition as null and void. Subsequently, he filed the Petition to withdraw the Suit. The Petitioner herein had filed Counter claim objecting to withdrawal of the Suit. The said withdrawal Petition was dismissed and the Counter claim was allowed. In the Civil Revision Petition filed by the Respondent the order of the learned trial Judge dismissing the Petition for withdrawal of the Suit was upheld and the Counter claim was confirmed. Against the order in the Civil Revision Petition, the Respondent approached the Hon'ble Supreme Court of India by way of Special Leave Petition and the same was also dismissed. Therefore, the Petitioner herein had rightly approached Executing Court seeking possession of the property to permit the Petitioner under Section 144 of C.P.C in E.A.Nos.51 & 52 of 2021 in E.P.Nos.73 & 74 of 2011 in R.C.O.P.Nos.22 & 23 of 2010 seeking possession, as the tenant had became the owner of the property by virtue of the purchase of property in the public auction conducted by the Indian Bank under the SARFAESI Act. The Executing Court having dismissed E.A.Nos.51 & 52 of 2021 in E.P.Nos.73 & 74 of 2011 in R.C.O.P.Nos.22 & 23 of 2010 is found unacceptable. The Petitioner herein was the successful bidder having been issued with Sale Certificate by the authorities of the Indian Bank. He having been declared as the successful bidder in the public auction of the property in which he  was a tenant. Therefore, under the principles of equity and good conscience the Civil Court has to protect the public auction purchaser. The Petitioner herein was the successful bidder having been issued with Sale Certificate by the authorities of the Indian Bank. He having been declared as the successful bidder in the public auction of the property in which he  was a tenant. Therefore, under the principles of equity and good conscience the Civil Court has to protect the public auction purchaser. Suppressing the fact that the erstwhile landlord having filed Petition in Execution Petition based on the R.C.OP Proceedings is found unacceptable in the light of the Petitioner herein who was erstwhile tenant who had been declared as the successful bidder and having been issued with the Sale Certificate by the Indian Bank authorities. 5. Therefore, in the light of the aforementioned circumstances and under the principles of equity and good conscience the Civil Court has to protect the auction purchaser of the property. Therefore, the order passed by the learned Additional District Munsif, Vellore in E.A.Nos.51 & 52 of 2021 in E.P.Nos. 73 & 74 of 2011 in R.C.O.P.Nos. 22 & 23 of 2010 is set aside. The order of the learned Additional District Munsif dismissing the E.A.Nos.51 & 52 of 2021 in E.P.Nos.73 & 74 of 2011 in R.C.O.P.Nos.22 & 23 of 2010 on the ground that the Hon'ble High Court had issued direction in the earlier Civil Revision Petition to grant opportunity to participate in the R.C.O.P proceedings and to dispose of the R.C.O.P.Nos.22 & 23 of 2010 on merits within a period of three months cannot be a ground to ignore the fact that auction purchaser of the property for which R.C.O.P.Nos.22 & 23 of 2010 had been filed. The R.C.O.P Petitioner has no locus- standi to file R.C.O.P.Nos.22 & 23 of 2010 after the Petitioner in E.A.Nos.51 & 52 of 2021 having been declared as the purchaser of the property and that had attained finality up to the stage of the Hon'ble Supreme Court of India. Therefore, the order of the dismissal in E.A.Nos.51 & 52 of 2021 is set aside and the same is allowed. In the result, both the Civil Revision Petitions are allowed. No costs. Accordingly, the impugned orders dated 18.08.2021 passed by the learned Additional District Munsif, Vellore, in E.A.Nos.51 & 52 of 2021 in E.P.Nos.73 & 74 of 2011 in RCOP Nos.22 & 23 of 2010 are set aside. In the result, both the Civil Revision Petitions are allowed. No costs. Accordingly, the impugned orders dated 18.08.2021 passed by the learned Additional District Munsif, Vellore, in E.A.Nos.51 & 52 of 2021 in E.P.Nos.73 & 74 of 2011 in RCOP Nos.22 & 23 of 2010 are set aside. Consequently, E.A.Nos.51 & 52 of 2021 in E.P.Nos.73 & 74 of 2011 in R.C.O.P. Nos.22 & 23 of 2010 are allowed. The learned Additional District Munsif, Vellore, is directed to pass orders in E.A.Nos.51 & 52 of 2021 in E.P.Nos.73 & 74 of 2011 in R.C.O.P. Nos.22 & 23 of 2010 as per Section 144 of the Code of Civil Procedure as per the prayer of the Petitioner within a period of one month from the date of receipt of a copy of this order.