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2024 DIGILAW 2651 (MAD)

Sadachi [died] v. P. C. Mariappan [died]

2024-11-22

N.SATHISH KUMAR

body2024
ORDER : N. SATHISH KUMAR, J. Challenging the impugned Order passed by the execution Court dismissing the application filed under section 47 and 151 of Code of Civil Procedure, to set aside the sale deed dated 22.08.1996, the present Civil Revision Petitions have been filed. 2. This revision petitioner in CRP [NPD] No.1936 of 2024 has been filed by the judgment debtor. The Civil Revision Petition in CRP [NPD] No.2052 has been filed by the subsequent purchaser to an extent of 77 ½ cents from the judgment debtor. These revisions have been filed to set aside the sale deed on the ground of irregularity. 3. Brief background of filing these Civil Revision Petitions is as follows : The decree holder, viz., the first respondent has filed a suit in O.S.No.1494 of 1983 for recovery of a sum of Rs.1253.25 based on the promissory note said to have been executed on 03.01.1981 with interest at the rate of 12% per annum. The suit has been decreed for a sum of Rs.1253.25 with interest at the rate of 9% from the date of plaint till the date of decree and thereafter at the rate of 6% from the date of decree till the date of realization. An appeal filed in A.S.No.203 of 1993 as against the judgement and decree has also been dismissed by the judgment dated 04.03.1994. Pursuant to the decree, it appears that an application has been filed in the Execution Petition in E.P.No.388 of 1995 for realization of the amount and an extent of 1 acre and 76 cents of the property belonging to the judgment debtor was attached. Thereafter, a sale has been effected. The auction purchasers, viz, the second respondent has purchased the entire extent of 1 acre 73 cents for a sum of Rs.25,300/-. In the meanwhile, the revision petitioner in CRP.No.2052 of 2004 has purchased to an extent 76 ½ from the judgment debtor. According to him the attachment Order of the Execution Court has not been communicated to the concerned Sub Registrar. Therefore, he is a bonafide purchaser. That apart, the sale made by the Court suffers from material irregularity. 4. The judgment debtor took a plea for recovery of the decree amount and for a meagre amount, the entire extent of 1 acre 76 cents has been sold and it is totally contrary to Order 21 Rule 64 of Code of Civil Procedure. That apart, the sale made by the Court suffers from material irregularity. 4. The judgment debtor took a plea for recovery of the decree amount and for a meagre amount, the entire extent of 1 acre 76 cents has been sold and it is totally contrary to Order 21 Rule 64 of Code of Civil Procedure. However, the trial Court dismissed the applications. Challenging the same, these Civil Revision Petitions have been filed. 5. The learned counsel appearing for the judgment debtor in CRP.No.1936 of 2004 would submit that he is ready to deposit interest for the amount deposited by the auction purchaser, i.e., 25,300/-, which comes to around Rs.63,000/- and the auction purchaser is also entitled to withdraw the amount already deposited before the trial Court, viz., 25,300/-. That apart, it is his contention that the entire auction is not valid in the eye of law. 6. The learned counsel appearing for the auction purchaser would submit that they are ready to pay interest at the rate of 9% which comes to around 63,000/- besides they may be permitted to withdraw the amount deposited in E.P.No.388 of 1995 7. Heard both sides and perused entire materials available on record. 8. A perusal of entire materials makes it clear that the suit has been decreed for a sum of Rs.1,253/- with interest at the rate of 9% till the date of decree and thereafter at the rate of 6% from the date of decree till the date of realization and for recovery of that meager amount, entire extent of 1 acre 73 cents has been brought for sale and has been sold in Court auction. As far as sale of the property for recovery of the decree amount, the execution Court has to strictly follow the procedure laid down in Order XXI Rule 64 of Code of Civil Procedure, which reads as follows : “64. As far as sale of the property for recovery of the decree amount, the execution Court has to strictly follow the procedure laid down in Order XXI Rule 64 of Code of Civil Procedure, which reads as follows : “64. Power to order property attached to be sold and proceeds to be paid to person entitled – Any Court executing a decree may Order that any property attached by it and liable to sale, or such portion thereof as may seen necessary to satisfy the decree, shall be sold and that the proceeds of such sale, or a sufficient portion thereof, shall be paid to the party entitled under the decree to receive the same.” The above Rule makes it clear that the that no sale can be allowed beyond the decree amount mentioned in the sale proclamation. The above Rule further makes it clear that if the property is large and the decree to be satisfied is only a meagre amount, the Court must bring only a small portion of the property which would be sufficient to satisfy the decree amount, which has not been followed in the present case. Whereas entire extent of 1 acre 73 1/2 acres has been sold for a sum of Rs.25,300/-. Whereas the decree amount is only a meager amount. Therefore, this Court is of the view that the sale conducted by the Court is totally in violation of Order 21 Rule 64 of Code of Procedure. On this ground alone, the entire sale is liable to be set aside. 9. As far as the contention of the learned counsel appearing for the revision petitioner in 2052 of 2004 that he is a subsequent purchaser and as the attachment has not been communicated, he has to be held as a bonafide purchaser, it is relevant to note that whenever, a judgment is passed by the Court, the same shall be communicated to the concerned registrar as per Order XXI Rule 58A of High Court Amendment Madras, which has not been complied. Therefore, it has to be held that as long as there is no attachment and encumbrance and the parties have also made a reasonable enquiry, the sale in favour of the subsequent purchaser cannot be held invalid. Therefore, it has to be held that as long as there is no attachment and encumbrance and the parties have also made a reasonable enquiry, the sale in favour of the subsequent purchaser cannot be held invalid. At any event, now the judgment debtor agreed to deposit a sum of Rs.63,000/- along with interest at the rate of 9% payable on the auction amount of Rs.25,300/- besides he has also submitted before this Court that the decree amount with interest will be deposited to the credit of the suit. A sum of Rs.63000/- towards interest shall be paid directly to the auction purchaser by way of a Demand Draft. The auction purchaser is directed to withdraw the amount, viz., 25,300/- from the Court by filing an appropriate application and any such application filed, the amount shall be released to him. The above amount shall be paid by the judgment debtor within a period of one month today. The subsequent purchaser has also made a statement before this Court that if the amount is not paid by the judgment debtor, he will pay the amount to the auction purchaser. 10. Accordingly, these Civil Revision Petitions are allowed. No costs. Consequently, connected miscellaneous petitions are closed.