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2014 Supreme(Mad) 3655
Before the Madurai Bench of Madras High Court
V.M. VELUMANI, J.
Karmegam
Versus
Dharmalingam & Another
C.R.P.(MD)No. 1224 of 2013 & M.P.(MD) Nos. 1 & 2 of 2013
Decided On: 14-10-2014
For the Petitioner:S. Natarajan, Advocate.
For the Respondents:R1, A. Hariharan, R2, G. Gomathi Sankar, Advocates.
The main legal point established in the judgment is that the impugned order is appealable under Order XLIII Rule 1(j) of CPC and the civil revision petition is not maintainable.
Headnote:
auction sale - Civil Procedure Code - Order XXI Rule 90, Order XXI Rule 92 - The court dismissed the application to set aside the auction sale on the ground that the impugned order is appealable under Order XLIII Rule 1(j) of CPC and the revision is not maintainable. The court held that the impugned order is passed only under Order XXI Rule 92 CPC and is appealable under Order XLIII Rule 1(j) CPC and the civil revision petition is not maintainable.
Fact of the Case:
The first respondent filed a suit for recovery of money from the petitioner and others. The petitioner did not contest the suit, and an ex-parte decree was passed. The first respondent filed for attachment and sale of the petitioner's properties. The petitioner filed an application to set aside the auction sale, alleging irregularities.
Finding of the Court:
The court dismissed the application to set aside the auction sale, stating that the impugned order is appealable under Order XLIII Rule 1(j) of CPC and the revision is not maintainable.
Issues: The main issue was whether the application to set aside the auction sale was maintainable.
Ratio Decidendi: The court held that the impugned order is passed only under Order XXI Rule 92 CPC and is appealable under Order XLIII Rule 1(j) CPC and the civil revision petition is not maintainable.
Final Decision: The civil revision petition was dismissed, and the court directed the appellate Court to exclude the period during which the civil revision petition was pending in this Court, while calculating the delay if any, in filing the appeal.
1. This civil revision petition has been filed to set aside the fair and decretal order, dated 10.10.2012, made in E.A.No.360 of 2008 in E.P.No.144 of 2007 in O.S.No.77 of 1990, on the file of Principal Sub-Court, Dindigul.
2. The revision petitioner is the defendant, whereas the first respondent is the plaintiff and the second respondent is the third party, auction purchaser in O.S.No.77 of 1990 on the file of Sub-Court, Dindigul.
3. The first respondent filed the suit in O.S.No.77 of 1990 for recovery of money from the petitioner, his two brothers and their mother. The petitioner filed written statement on 12.12.1990 and thereafter, the petitioner and others did not contest the suit and ex-parte decree was passed on 04.09.1997. The first respondent filed E.P.No.144 of 2007 for attachment and sale of two immovable properties belonging to the petitioner.
4. In E.P.No.144 of 2007, the petitioner entered appearance. He did not file any counter, even though number of opportunities were given to the petitioner. Finally, he was set ex-parte and orders were passed for sale of the immovable properties belonging to the petitioner. The first respondent/decree holder was given permission to bid in auction sale. The auction sale was conducted on 25.06.2008. The first respondent was the successful bidder for Item No.1 and the second respondent was the successful bidder for Item No.2.
5. The petitioner filed E.A.No.360 of 2008 in E.P.No.144 of 2007 in O.S.No.77 of 1990 under Order XXI Rule 90 CPC, to set aside the auction sale conducted by the Court, on 25.06.2008 on the ground that irregularities were committed in conducting the auction sale and the properties worth about Rs.5,00,000/- were sold for Rs.45,000/- for the first item and Rs.46,000/-for the second item of the property.
6. The first respondent in his counter denied all the allegations of the petitioner. According to the first respondent, the petitioner did not contest the suit, as he did not have any valid defence. In the E.P. also, ample opportunities were given to the petitioner to set out his case. The petitioner even after taking number of adjournments, did not file any counter affidavit in the E.P and therefore, he was set ex-parte.
7. After following the procedure, the properties were sold as per law and rules. There is no irregularity in conducting the auction sale. The properties were sold for proper price. The petitioner only with a view to drag on the proceedings, has filed the application under Order XXI Rule 90 CPC and prayed for dismissal of the said E.A.
8. The second respondent in his counter affidavit, has stated that the petitioner has filed the application only to drag on the proceedings. There is no irregularities in conducting the auction sale and the properties were sold for the correct price as fixed by the Court. The auction sale was conducted only after proper publication.
9. The learned Judge after considering the materials on record and hearing the arguments of the learned counsel for the petitioner and the respondents, by the order dated 10.10.2012, dismissed E.A.No.360 of 2008 on the ground that the petitioner was aware of the entire proceedings and that the petitioner did not point out any irregularity in the procedure in conducting the auction sale by the Court and did not furnish any security as per law.
10. Aggrieved by the order dated 10.10.2012, made in E.A.No.360 of 2008, the petitioner has filed the present civil revision petition.
11. Heard Mr. S. Natarajan, learned counsel for the petitioner, Mr. A. Hariharan, learned counsel for the first respondent and Mr. G. Gomathi Sankar, learned counsel for the second respondent.
12. The learned counsel for the petitioner argued that the impugned order is liable to be set aside for the following reasons:
(i) The learned Judge has failed to properly appreciate the provision of Order XXI Rule 90 CPC, for setting aside the auction sale, as there is material irregularities.
(ii) The properties
