Appeal filed by judgment-debtor against order of possession under O.41, Rule 1 is not maintainable.

(PRAYER: Civil Revision Petition is filed under Section 115 of Civil Procedure Code against the Order and decretal order of the learned Subordinate Judge, Namakkal, in C.M.A.No.16 of 2005, dated 14.09.2005, confirming the Order and Decretal Order of the learned District Munsif, Rasipuram, in R.E.A.No.178 of 2004 in R.E.P.No.243 of 1995 in O.S.No.176 of 1983, dated 23.06.2005.)

This Civil Revision Petition is filed under Section 115 of Civil Procedure Code against the Order and decretal order of the learned Subordinate Judge, Namakkal, in C.M.A.No.16 of 2005 dated 14.09.2005, confirming the Order and Decretal Order of the learned District Munsif, Rasipuram, in R.E.A.No.178 of 2004 in R.E.P.No.243 of 1995 in O.S.No.176 of 1983 dated 23.06.2005.

2. Heard the learned counsel for the petitioner as well as the respondents.

3. The case of the petitioner is that the first respondent herein filed O.S.No.176 of 1983 on the file of District Munsif, Rasipuram, to recover Rs.27,180/-. The suit was decreed and the first respondent had filed an execution petition in R.E.P.No.243 of 1995 and brought the properties of the petitioner, namely, the mill and the house, to court auction. The properties were taken in auction by the second respondent for a sum of Rs.75,400/- and the sale was also confirmed. The Auction purchaser filed an application R.E.A.No.178 of 2004 in R.E.P.No.243 of 1995 for delivery of possession.

4. The petitioner further states that even before the delivery of possession was effected, he filed R.E.A.No.1324 of 2001 in R.E.P.No.243 of 1995 under Section 47 of the Civil Procedure Code to set aside the sale. When the application was posted for hearing on 18.08.2003, his counsel could not attend the hearing and therefore, the petition was dismissed. He further states that he had filed an application to restore the application E.A.No.1324 of 2001 which was dismissed for default. While the said application was pending, the Executing Court directed the delivery of property to the second respondent herein. The petitioner has also filed Civil Miscellaneous Appeal. No.16 of 2005, against the order made in R.E.A.No.178 of 2004 in R.E.P.No.243 of 1995.

5. In his affidavit filed in the Civil Miscellaneous Petition.No.20592 of 2005, he has stated that the property is worth over Rs.10,00,000/- and the auction was taken for a meagre amount of Rs.75,400/- and that the appellate Court has jurisdiction to set aside the order of the District Munsif and that there is no time limit for moving an application. He has further averred that without disposing of his application for restoration, the order for delivery of possession ought not to have been passed.

6. The petitioner has further stated in his affidavit that the respondents had contended that an appeal is not maintainable and that only a revision had to be filed. Further, the learned Sub-ordinate Judge, Namakkal, had dismissed the appeal holding that the appeal was not maintainable. Therefore, the petitioner was constrained to file the present Civil Revision Petition.

7. On the contrary, the case of the respondents is that the first respondent herein had filed the suit in O.S.No.176 of 1983 for recovery of money as against the petitioner and that the suit was decreed as early as 18.04.1984. He further states that the petitioner herein having suffered a decree, had failed to pay the decree amount, which necessitated the first respondent / decree holder to file the petition to execute the said decree. Accordingly, on 28.07.1995, he had filed R.E.P.No.243 of 1995 to attach and to bring the property of the Judgment debtor for sale by court auction to realise the decree amount. He further states that the petitioner having received the notice, had failed to file counter the statement in R.E.P.No.243 of 1995 and hence, he was called absent and set exparte on 31.01.1996. Thereafter, the properties were attached on 06.03.1996.

8. It is further stated that the first respondent /decree holder had