This Revision has been filed by the petitioner against the order passed by the Execution Court in REA.No.216 of 2007 in REP.No.37 of 2005 in O.S.No.103 of 2004 dated 27.04.2007.

2. The revision petitioner, as plaintiff, had filed the suit O.S.No.103 of 2004 against the respondent herein/defendant for the recovery of a pronote debt. The suit was decreed in favour of the revision petitioner/plaintiff. He had filed execution petition in R.E.P.No.37 of 2005. The said EP for sale attachment was ordered and thereafter, sale was also ordered. A Court auction was conducted and auction purchaser had successfully bid and the sale was confirmed and he deposited the amount into the Court. The petitioner has filed REA.216 of 2007 for the payment of the decree amount from out of the said deposit. The said application was dismissed by the lower Court. Hence, the present revision has been preferred by the decree holder/petitioner.

3. The averments in the application filed by the revision petitioner/plaintiff are as follows:-The petitioner had filed the suit for the recovery of pronote debt from the respondent/defendant. After decree, the petitioner filed Execution petition attaching the properties of judgment debtor. In furtherance of the same, out of two items of properties attached, one of them was sold in court auction sale on 20.12.2006 in favour of one Chinnadurai for a sum of Rs.1,62,000/-and he paid 1/4th amount. Subsequently the auction purchaser deposited the balance amount and as such there is an amount of Rs.1,62,000/- in the Court deposit in the said REP.No.37 of 2005. The petitioner/decree holder is entitled to get back a sum of Rs.1,38,936/-towards the decree amount as noted in the proclamation form dated 211. 2006. Even during the pendency of EP, the respondent filed petition questioning the same stating that he had filed I.P.No.44 of 2005. But his objection was met and answered suitably. The decree holder filed counter stating that the judgment debtor did not include the EP properties in the schedule of properties in IP and further, even if included, unless and until the judgment debtor is declared as insolvent, the EP proceedings cannot be stayed or stopped. Perusing the same the Court was pleased to dismiss the petition REA.No.488 of 2005. As such the petitioner/decree holder is entitled to get back a sum of Rs.1,38,936/- out of the sale amount of Rs.1,62,000/-. There is no attachment or any other impediment nor any minor claim over the same. There is no appeal, revision or stay against the decree, EP or REA to the knowledge of the petitioner. Accordingly, the said sum has to be paid to the petitioner in the name of his counsel. Mr.S.Sridhar, Advocate, Salem, whose vakalat is still in force. Hence, he prays for an order of disbursement of a sum of Rs.1,38,936/-.

4. The respondent had filed a counter contending as follows:-The application is not maintainable in law and the same is barred by Insolvency law. It is not tenable to say that the petitioner is entitled to get back a sum of Rs.1,38,936/-towards decree amount as noted in the proclamation dated 211. 2006. It is not tenable to say that the application filed by the respondent in REA.488 of 2005 dismissed by the Court and the petitioner is entitled to withdraw the amount since the respondent is to be declared as an insolvent in the I.P.No.44 of 2005 filed by the petitioner. The properties said to be sold in the Court auction is part and parcel of properties in I.P.No.44 of 2005 and the sale conducted by the Court is not valid in law in view of the respondents insolvency proceedings in I.P.No.44 of 2005. The petitioner is not entitled to get back a sum of Rs.1,38,936/- out of the sale amount of Rs.1,62,000/-since there is no attachment or any minor claim, appeal or revision or stay against the decree. It is further stated that the respondent has also filed an application to set aside the sale conducted by the Court since the Court has conducted the same contrary