Mortgage, an equitable mortgage not registered.

1. The above civil revision petition is directed against the fair and decretal order dated 10.11.1993 made in E.A.No.653 of 1992 in E.P.No.271 of 1989 in O.S.No.634 of 1977 by the Court of District Munsif, Tiruppur, thereby allowing the said execution application in favour of the first respondent herein.

2. The averments of the said application filed by the first respondent herein who is the petitioner before the lower court are that, he is the absolute owner of the schedule mentioned property; that he took 2/3rd share of the entire property belonging to the respondents No.2 to 8 in auction in E.P.No.489 of 1978 in O.S.No.706 of 1977 on the file of the Court of Subordinate Judge, Coimbatore (A suit for recovery of money filed by R.Venkidusamy Chit Funds against V.T.V. Raghunath Rao and others). Then, he filed a partition suit for dividing his 2/3rd share in the entire property consisting of vacant area and buildings as per the suit in O.S.No.58 of 1982 on the file of the Court of Subordinate Judge, Tiruppur, and a preliminary decree followed by a final decree had been passed in the said suit allotting the petition mentioned property and the terrace and the tiled building located on the North of the petition mentioned property to the petitioner.

3. The further case of the petitioner before the lower court was that, filing E.P.No.18 of 1983, he also took delivery of possession of the petition mentioned property on 13.9.1983 by order of the court.

4. While so, one Rajamani Ammal filed a suit in O.S.No.292 of 1990 in the Court of Subordinate Judge, Tiruppur, and brought the property located to the North of the petition properties for sale as per E.P.No.110 of 1988 and one R.Venkitaswamy was the successful biddeer in the court auction and took delivery of possession of 1800 sq.ft. North of the petition mentioned property.

5. The further case of the petitioner as putforth in the lower court is that, on 15.7.1992, the petitioner was given to understand that in pursuance of an equitable mortgage created by the respondents Nos.2 to 8, therein in favour of the first respondent the laid property had been brought for sale and as per the sale held on 19.6.1990, the 9th respondent, the court auction purchaser is said to have taken delivery of possession subsequently, that since on the date of sale on 19.6.1990, the respondents Nos.2 to 8 did not at al have any title over the petition mentioned property and it was the petitioner who was the absolute owner and in possession of the same, the said execution conducted pertaining to the petition mentioned property and its subsequent court auction sale are not binding on the petitioner; that the first respondent suppressing the petitioners right in the petition mentioned property and without impleading him as a party to the execution proceeding and acting in collusion with the other respondents, has created records to the effect that they got delivery of possession of the petition mentioned property that all the said proceedings are not biding on the petitioner; that knowingly the right of the petitioner over the petition mentioned property, the first respondent allowed the respondents Nos.2 to 8 even to withdraw the amount from the court and in the abvoe circumstances, unless the sale dated 19.6.1990 is set aside and proper relief of restitution is granted, the petitioner will be not put t a lot of inconvenience and hardship and would ultimately pray for declaring the court auction sale dated 19.6.1990 as null and void and to order delivery of possession of the petition mentioned property by way of restitution.

6. In the counter statement filed by the first respondent therein besides generally denying the allegation of the petition would further allege that the petitioner has not locus standi to file the application under Sec.47, C.P.C., since he is a third party to the proceedings and since he is not a judgment-debtor or decree-holder or auction-purchaser in the Execution Petition No.