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2005 Supreme(Mad) 715
High Court of Judicature at Madras
THE HONOURABLE MRS. JUSTICE R.BANUMATHI
J.M.Meera Nachi - Appellant
Versus
Sri Ashtalamshmi Finance Tirunelveli - Respondents
Civil Revision Petition (NPD) No.543 of 2005
Decided On : 21 April 2005
The main legal point established in the judgment is that the claimant's purchase of the properties was subject to the mortgage, and the court has discretion in granting a stay of sale under Order 21 Rule 59 CPC.
Headnote:
Mortgage - Adjournment of Sale - Order 21 Rule 69 CPC - Order 21 Rule 58 CPC - Order 21 Rule 59 CPC
Fact of the Case:
The revision petition was filed against the order of the Subordinate Court, Tirunelveli, dismissing the petition filed under Order 21, Rule 69 CPC and declining to adjourn the sale. The claimant purchased properties through a sale deed and filed a claim petition seeking declaration of entitlement to the property. The court dismissed the petition for adjournment of the sale, leading to the filing of the revision petition.
Finding of the Court:
The court found that the claimant's purchase of the properties was subject to the mortgage and therefore could not challenge the mortgage decree. It also noted that the petition filed under Order 21 Rule 58 CPC may not be maintainable as the mortgage debt is a secured debt, and no further attachment of the mortgaged property is necessary.
Issues: The issues revolved around the dismissal of the petition for adjournment of the sale, the maintainability of the claim petition, and the discretion of the court in granting a stay of sale under Order 21 Rule 59 CPC.
Ratio Decidendi: The court held that the claimant had no prima facie case to grant a stay of sale and that the dismissal of the petition for adjournment was not an improper exercise of discretion. It also emphasized that under Order 21 Rule 59 CPC, the stay of sale is not mandatory and is within the discretion of the court.
Final Decision: The court confirmed the order of the Subordinate Judge, Tirunelveli, dismissing the petition and the revision petition, and vacated the interim stay already granted.
(PRAYER: Revision filed against the Order passed in E.A.No.157 of 2005 in E.P.No.390 of 2004 in O.S.No.393 of 1998 dated 11.02.2005, on the file of the Subordinate Judge, Tirunelveli.)
When the CMP came up for hearing, by the consent of both parties, the main revision Petition itself has been taken up for hearing.
2. This revision is directed against the Order of the Subordinate Court, Tirunelveli made in E.A.No.157 of 2005 in E.P.No.390 of 2004 in O.S.No.393 of 1998, dated 11.02.2005, dismissing the Petition filed under Order 21, Rule 69 CPC and declining to adjourn the sale.
3. E.P.No.390 of 2004 in O.S.No.393 of 1998 was filed in execution of the mortgage in O.S.No.393 of 1998. The Mortgage Deed relates to six items of properties. The following dates are relevant to be noted: -
Date of Mortgage : 22.11.1993
Date of Preliminar Decree : 6.6.2002
Date of Final Decree : 10.06.2003
Date of Sale infavour of the Claimant : 10.01.1996
Date of filing claim Petition : 10.02.2005
4. The mortgaged six items of properties were sought to be sold. The Revision Petitioner/Claimant filed E.A.No.153 of 2005 under Order 21 Rule 58 CPC seeking declaration that the Petitioner is entitled to the second schedule property. Case of the Revision Petitioner is that she purchased the properties by a Sale Deed dated 10.01.1996. Osne Kithar Mohammed, as Power of Attorney to the second Respondent / Balapalaniyappan, sold the properties to the Claimant. The Claimant has also put up constructions in two shops bearing Door Nos.164-P, 164-P-1. The Claimant/Petitioner was not made a party to the mMortgage suit; nor in the Execution proceedings, but the constructed shop portions are included in the schedule of properties sought to be sold. Hence the Revision Petitioner/Claimant has filed claim Petition in E.A.No.153 of 2003, under Order 21, Rule 58 CPC. E.A.No.157 of 2003 was filed under Order 21, Rule 69 CPC to adjourn the sale scheduled on 11.02.2005. Upon hearing the parties, the Petition for adjourning the sale was dismissed.
5. Aggrieved over the order of dismissal, the Revision Petitioner/Claimant has preferred this revision. Assailing the impugned order, the learned counsel for the Revision Petitioner contended that the trial Court erred in dismissing the Petition for adjourning the sale. It is further submitted that the impugned order suffers from serious infirmities since the same is not a speaking order. Drawing the attention of the Court to Order 21 Rule 59 CPC, the learned counsel has submitted that pending adjudication of the claim Petition, the property shall not be sold, while so, the trial Court ought to have adjourned the sale, till the disposal of the claim Petition and the impugned order is to be set aside.
6. Countering the arguments, the learned counsel for the Respondent/Decree Holder has submitted that the vendor of the Petitioner has already mortgaged the property to the Respondent and that any sale by the Mortgagor is subject to the mortgage. It is further submitted that no amount was paid though the Preliminary Decree was passed on 06.06.2002 and Final Decree on 10.06.2002. Drawing the attention of the Court to Order 21 Rule 59(2) CPC, the learned counsel has submitted that the stay order could be made only on such terms and conditions and that there is no improper exercise of discretion in dismissing the Petition warranting interference.
7. Whether the impugned order declining the stay of the sale suffers from infirmity and whether there is improper exercise of discretion in declining to adjourn the sale ? is the point that arises for consideration in this revision Petition.
8. The sale infavour of the Revision Petitioner/Claimant on 10.01.1996 is subsequent to the Mortgage Deed (Mortgage Deed is dated 22.11.1993). Any purchase thereafter is only subject to the mortgage. The Revision Petitioner/Claimant cannot challenge the mortgage Decree. The Revision Petitioner seems to have no prima facie case in seeking for adjournment of the sal
