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2011 Supreme(Mad) 4849
Madras High Court
T. MATHIVANAN, J.
Mohideen Pitchai & Another
Versus
Salim
CM.SA.(MD)No.44 of 2011 & M.P.(MD)No.1 of 2011
Decided on : 23-12-2011
For the Appellants:R.G. Shankar Ganesh, Advocate.
For the Respondent:N.C.R. Janagan, Advocate.
The main legal point established in the judgment is the application of Article 127 of the Limitation Act 1963 in determining the limitation period for filing an application under Order 21 Rule 90 CPC to set aside a sale. The judgment emphasizes the importance of proving fraud or material irregularity in conducting the sale and the significance of the encumbrance certificate in nullifying the sale.
Headnote:
Limitation - Execution of Decree - Order 21 Rule 90 CPC - Article 127 of the Limitation Act 1963 - The court dismissed the appeal, confirming the order passed by the Court of first instance in E.A.No.208 of 2009 under Order 21 Rule 90 CPC, as the application was barred by limitation. The appellants failed to prove fraud or material irregularity in conducting the sale, and the encumbrance certificate produced by the respondent/plaintiff did not nullify the sale.
Fact of the Case:
The respondent instituted a suit for recovery of a sum against the appellants, which was decreed. The property of the appellants was sold in court auction, and the respondent purchased it. The appellants filed an application to set aside the sale, which was dismissed on the ground of limitation and lack of proof of fraud or material irregularity.
Finding of the Court:
The court found that the application to set aside the sale was barred by limitation as per Article 127 of the Limitation Act 1963. The appellants failed to prove fraud or material irregularity in conducting the sale, and the encumbrance certificate produced by the respondent did not nullify the sale.
Issues: The main issues were the limitation period for filing the application under Order 21 Rule 90 CPC, and the lack of proof of fraud or material irregularity in conducting the sale.
Ratio Decidendi: The application to set aside the sale was barred by limitation as per Article 127 of the Limitation Act 1963. The appellants failed to prove fraud or material irregularity in conducting the sale, and the encumbrance certificate produced by the respondent did not nullify the sale.
Final Decision: The Civil Miscellaneous Second Appeal was dismissed with costs, and the orders of the courts below were confirmed.
1. This Civil Miscellaneous Second Appeal is directed against the judgment and decree, dated 01.06.2011 and made in CMA No.7 of 2010 on the file of the learned Principal District Judge, Theni, confirming the order, dated 22.02.2010 and made in E.A.No.208 of 2009 in E.P.No.15 of 2006 on the file of the learned Subordinate Judge, Uthamapalayam.
2. The facts, which are absolutely necessary for the disposal of this appeal as under:-
The appellants herein are the defendants in O.S.No.138 of 2004. The respondent herein is the plaintiff in the suit. The respondent herein has instituted the suit in O.S.No.138 of 2004 on the file of the learned Subordinate Judge, Uthamapalayam, for recovery of a sum of Rs.2,53,866/-, which includes interest as against the appellants herein.
3. The suit was decreed as prayed for on 18.03.2005. Subsequent thereof, the respondent/plaintiff has initiated execution proceedings in E.P.No.15 of 2006 on the file of the Court of first instance, wherein the property of the appellants/defendants was sold in court auction.
4. The respondent, being the decree-holder has purchased the property on 20.10.2008, after getting necessary permission from the Court of first instance in E.A.No.5 of 2008 on 20.02.2008. The sale, dated 20.10.2008 was confirmed on 22.12.2008 and a sale certificate was also issued in favour of the respondent/plaintiff on 4.2.2009. But only under this circumstance, the appellants/defendants came out with an application in E.A.No.208 of 2009 under Order 21 Rule 90, to set aside the sale, which took place on 20.10.2008 on the ground of material irregularity and fraud. That application was resisted by the respondent/plaintiff and on hearing both sides, it was dismissed on 22.02.2010.
5. Impugning the order of dismissal, the appellants have preferred a revision in CRP(MD)No.876 of 2010. But that revision petition was dismissed on the ground of maintainability and this court has also found that against the order passed under Order 21 Rule 90 of the Code of Civil Procedure, appeal alone would lie under Order 43 Rule 1(j) of the Code of Civil Procedure. Accordingly, the appellants have preferred an appeal in CMA No.7 of 2010 before the learned Principal District Judge, Theni. After hearing both sides, the learned Principal District Judge, Theni, has proceeded to dismiss the appeal in CMA No.7 of 2010 on 01.06.2011, confirming the order passed by the Court of first instance, in E.A.No.208 of 2009.
6. Being aggrieved by the order passed in CMA No.7 of 2010, the appellants/defendants/Judgement Debtors have approached this court by way of this Civil Miscellaneous Second Appeal.
7. Heard Mr.R.G.Shankar Ganesh, the learned counsel appearing for the appellants and Mr.N.C.R.Janagan, the learned counsel for the respondent.
8. On the grounds of Memorandum of Civil Miscellaneous Second Appeal, the following substantial questions of law have been formulated for the consideration of this court:-
“(1) Whether the period of limitation of 60 days has to be calculated from the date of sale conducted by the Central Nazir or from the date of hearing subsequent to sale?
2.) Whether the application under Order 21 Rule 90 CPC has to be filed within the period of 60 days when fraud and material irregularity has been pleaded by the appellants?
3.) Whether reserve price has to be mentioned when the decree holder himself purchases the property in court auction sale?
4.) Whether quoting of lesser price be a ground to set aside the sale?”
9. The substantial questions of law 1 and 2 are identical in nature. Similarly, the questions of law 3 and 4 are also identical in nature.
10. As it is manifested from the records, the suit in O.S.No.138 of 2004 filed by the respondent/plaintiff herein was decreed for a sum of Rs.2,53,866/- [Rupees Two lakhs Fifty three thousand eight hundred and sixty six only]. The appellants being the defendants and judgment debtors have not challenged the decree and judgment made in the suit. He
