IN THE HIGH COURT OF JUDICATURE AT MADRAS
V.M. VELUMANI, J.
Seetha Arunachalam & Others – Petitioner
Versus
The Andhra Bank Limited, Rep. by its Chief Manager & Others – Respondent
C.R.P. NPD No. 3142 of 2014 & M.P. No. 1 of 2014
Decided On : 03-01-2018
Code of Civil Procedure, 1908 - Section 2 (9) - Suit decree - For recovery of money - Public auction was not held as per the procedures and number of irregularities were committed by the first respondent - First respondent and second defendant colluded together and the property was sold for a very low amount - Held, Court permitted the second defendant to deposit the amounts to the credit of execution petition as a condition for stay of further proceedings, based on the undertaking given by the second defendant Court did not pass any orders restraining the first respondent from proceeding with the execution petition or restraining the Executing Court from following the procedures contemplated - After court auction sale, the judgment debtor or his legal heirs have right to deposit or pay the amounts due and seek for setting aside the auction sale - Having filed such an application and having failed in getting favourable orders, it is not open to the judgment debtor or his legal heirs to seek to set aside the auction sale on the ground that they have paid the entire decretal amount - Remedy now available to the petitioner and respondents is to get the amount from court deposit and refund of amount paid directly to the first respondent to file petition to withdraw the amount deposited by the second defendant and seek refund of the amount paid directly to the first respondent - Petition dismissed.
1. This Civil Revision Petition is filed against the order and decretal order dated 22.04.2014 made in E.P.No.95 of 1978 in O.S.No.403 of 1976 on the file of the Principal Sub Court, Coimbatore.
2. The petitioners/judgment debtors are respondents 3 to 5, the first respondent / decree holder is the petitioner, the second respondent is the first respondent and the respondents 3 to 5 are the respondents 6 to 8 in E.P.No.95 of 1978. The 6th respondent is the son of Late Shanmugam Chettiar, the auction purchaser.
Facts of the case:-
3. The first respondent filed O.S.No.403 of 1974 against the second respondent herein, P.S.S.Somasundaram Chettiar, The Kaleeswara Mills Limited (in Liquidation rep. by the Official Liquidator) and the Tamil Nadu Textile Corporation Ltd. for recovery of money. The said suit was decreed exparte on 15.04.1976. The first respondent filed E.P.No.95 of 1978 to realise the decretal amount by attachment of sale of eight items of the properties. The 8th item was the absolute property of Mr.P.S.S.Somasundaram Chettiar (hereinafter referred to as 2nd defendant). On 06.09.1979, one Shanmugam Chettiar, the father of the 6th respondent herein purchased Item No.8 for Rs.6,26,000/- in the court auction sale. The second defendant and his son Sathappan filed E.A.Nos.418 of & 419 of 1983 respectively, under Order XXI Rule 90 CPC, to set aside the action sale dated 06.09.1979.
3(a) According to the second defendant and his son Sathappan, the public auction was not held as per the procedures and number of irregularities were committed by the first respondent. The first respondent and second defendant colluded together and the property was sold for a very low amount. The above contentions were considered by Sub Court, Coimbatore and by order dated 10.10.1985, both the E. As were dismissed. Challenging the order dated 10.10.1985 passed in E.A.No.419 of 1983, Sathappan, son of second defendant filed CMA No.771 of 1985 before this Court. This Court, by order dated 08.10.1990, dismissed the said CMA. Sathappan, son of second defendant preferred LPA No.100 of 1991 against the order passed in CMA No.771 of 1985. A Division Bench of this Court, by judgment dated 24.08.1998, dismissed the said LPA No.100 of 1991 as not maintainable.
3(b) The said Sathappan preferred appeal before the Hon'ble Supreme Court in Civil Appeal No.689 of 1998. By judgment dated 07.10.2004, the Hon'ble Supreme Court allowed the Civil Appeal holding that LPA is maintainable and remanded the matter back to this Court. By judgment dated 13.03.2006, the Division Bench of this Court dismissed the LPA after remand. Meanwhile, the second defendant filed O.S.No.824 of 1987 on the file of Sub Court, Coimbatore for mandatory injunction directing the Union of India and National Textile Corporation to discharge the decretal liability in O.S.No.403 of 1974, to declare the sale in E.P.No.95 of 1978 as void and for other reliefs, which was subsequently transferred to II Additional District Munsif Court, Coimbatore and re-numbered as O.S.No.2976 of 1996. In the said suit, M/s.Krishna Ginning Factory was the 6th defendant. The said M/s.Krishna Ginning Factory filed O.S.No.2977 of 1996 on the file of Sub Court, Coimbatore for declaration of title of 8th item of the suit property. By judgment and decree dated 13.06.2001, both the suits were dismissed.
3(c) Against the order of dismissal dated 13.06.2011 made in O.S.Nos.2976 & 2977 of 1996, the second defendant filed A.S.No.170 of 2001 and M/s.Krishna Ginning Factory filed A.S.No.148 of 2001, respectively. By judgment dated 18.12.2003, the Appellate Court dismissed both the appeals. The second defendant filed S.A.No.121 of 2006 against the dismissal order made in A.S.No.170 of 2001 and M/s.Krishna Ginning Factory filed S.A.No.293 of 2005 against the dismissal order made in A.S.No.148 of 2001. This Court, by judgment dated 27.01.2006 dismissed the S.A.No.293 of 2005 filed by M/s.Krishna Ginning Factory and by order dated 0
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