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2010 Supreme(Mad) 1799
High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE C.S. KARNAN
Ponnusamy
Versus
Sulochana & Another
CRP(NPD).No.1944 of 2009 and M.P.No. 1 of 2009
Decided On : 19-04-2010
For the Petitioner:S. Sounthar, Advocate.
For the Respondents:R1, P. Valliappan, Advocate.
The dispute over the auction purchase required further evidence and could not be resolved without recording evidence of both parties and the documentary evidence.
Headnote:
Court Auction - Dispute over Property Auction - Order 21 Rule 90, Civil Procedure Code - AIR 1939 Madras 250, AIR 1996 Karnataka 128, AIR 1975 Madras 36, AIR 1975 Calcutta 80, AIR 1995 Karnataka 30, AIR 1966 Allahabad 188 - The court discussed the dispute over the auction of the property and the application filed under Order 21 Rule 90 of the Civil Procedure Code. The court referred to several judgments to determine the legality of the auction and the rights of the parties involved.
Fact of the Case:
The petitioner challenged the auction purchase of the property and sought to set it aside. The court dismissed the application, stating that the dispute could only be resolved after recording evidence of both parties and the documentary evidence.
Finding of the Court:
The court found that the auction dispute required further evidence and upheld the lower court's decision to dismiss the application.
Issues: Dispute over property auction, legality of the auction, rights of the parties involved
Ratio Decidendi: The dispute over the auction purchase required further evidence and could not be resolved without recording evidence of both parties and the documentary evidence.
Final Decision: The Civil Revision Petition was dismissed, and the lower court's order was confirmed. The connected miscellaneous petition was closed.
The civil revision petitioner herein is the applicant/third party in E.A.No.151 of 2007, in E.P.No.56 of 2004, in O.S.No.188 of 2003, on the file of the Sub-Court, Kallakurichi. The civil revision petitioner has filed an execution application in E.A.No.157 of 2007, praying to set aside the Court auction dated 18.04.2007, conducted in E.P.No.56 of 2004, in O.S.No.188 of 2003. The same was dismissed on 25.08.2008. Against this order, the revision has been filed.
2. The revision petitioner/third party applicant has inter-alia stated that the first respondent has filed a suit in O.S.No.188 of 2003 against the second respondent for recovery of money. The same was decreed on 28.11.2003. Pursuant to the decree, the first respondent has filed E.P.No.56 of 2004 for attachment of nine items of immovable properties of the second respondent. Out of these nine items of properties, the eighth item of property has been purchased by the first respondent in the Court auction after obtaining permission from the Court. But, so far, the said auction had not been confirmed by the Court.
3. The revision petitioner has further stated that he had filed a suit in O.S.No.681 of 2002 against the second respondent herein, on the file of the District Munsif Court, Kallakurichi. The same was decreed. Pursuant to the decree, the revision petitioner attached the immovable property of the second respondent, including the eighth item of property, which was subsequently purchased by the first respondent after a period of one year. The revision petitioner has submitted that there is a relevant entry in the encumbrance certificate also regard the said attachment as per decree passed in O.S.No.681 of 2002.
4. The revision petitioner further stated that the Court auction was conducted without scrutinising the title of the eighth item of property. Further, the second respondent colluded with the first respondent for conducting the public auction.
5. The first respondent has filed a counter statement and denied the allegations made by the revision petitioner. The first respondent stated that the eighth item of property was not auctioned, but the respondent had obtained permission from the Court after filing necessary papers and knocked down the property in the public auction. There are no grounds to set aside the said auction. Further, the execution application is not maintainable. Other than this property, some other property belonging to the second respondent is also available to be brought to a public auction for executing the revision petitioners decree. As such, the said application is not maintainable and the first respondent has prayed to dismiss the same.
6. The short facts of the case are as follows:-
The first respondent/plaintiff had filed a suit in O.S.No.188 of 2003 before the Sub Court, Kallakurichi for recovery of Rs.1,26,800/-against the second respondent/defendant. The suit was set ex-parte. Pursuant to this ex-party decree, the first respondent/plaintiff/decree holder has filed E.P.No.56 of 2004 in O.S.No.188 of 2003 on the file of the Sub-Court, Kallakurichi. As per the Decree, the petitioner/decree holder had purchased the eighth item of property. The revision petitioner has challenged the auction purchase of eighth item of property, dated 18.04.2007, before the Sub-Court, Kallakurichi, in E.A.No.151 of 2007 and sought for setting aside the said auction purchase. This application was dismissed.
7. Aggreived by the said Order passed in E.A.No.151 of 2007, on the file of the Sub-Court, Kallakurichi, the revision petition has been filed.
8. Learned counsel appearing for the revision petitioner contended that the eighth item of property mentioned in the E.P. Proceedings in E.P.No.56 of 2004 had already been attached on 10.06.2003. Without considering this aspect of the matter, the Court had permitted the auction, which is against law. Further, the learned counsel contended that the first and second respondents have colluded with each
