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V.KANAGARAJ
Easwaran – Appellant
Versus
T. K. Venkatachalam – Respondent
Yes, in the facts of this case, the court auction sale under the money decree prevailed over the subsequent court auction sale under the mortgage decree.
The property was first auctioned on 1.8.1979 in execution of a money decree (O.S. No. 706/1977), where the first respondent purchased a 2/3rd undivided share, obtained a sale certificate on 27.9.1980, secured a partition decree (O.S. No. 58/1982) with final decree on 31.1.1983, and took actual delivery of possession on 13.9.1983.[21000947310002][21000947310017][21000947310025]
The mortgage decree (O.S. No. 634/1977, final decree 19.8.1980) execution (E.P. No. 271/1989) occurred much later, with auction on 19.6.1990 to the petitioner (9th respondent), confirmation on 31.8.1990, and delivery on 30.11.1990—seven years after the money decree purchaser's possession—without notice or impleadment of the money decree purchaser.[21000947310003][21000947310004][21000947310025][21000947310026]
The mortgage was an equitable mortgage by deposit of title deeds created on 27.5.1972, which was unregistered and lacked public notice via memorandum registration, distinguishing it from registered mortgages and limiting lis pendens application.[21000947310005][21000947310016][21000947310028][21000947310029][21000947310030]
The money decree auction purchaser was a bona fide third-party court auction purchaser with prior possession, not a party to the mortgage proceedings; execution against the property without impleading the owner rendered it null, prioritizing chronology and equity ("whoever comes first has to be served first").[21000947310007][21000947310024][21000947310029][21000947310030] (!)
The lower court correctly allowed E.A. No. 653/1992 under Sections 47, 144, and 151 CPC, declaring the mortgage auction sale (19.6.1990) null/void and ordering restitution/delivery to the money decree auction purchaser; this was upheld, dismissing the CRP.[21000947310001][21000947310027][21000947310031][21000947310032]
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 lo
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