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2019 Supreme(Mad) 138
IN THE HIGH COURT OF JUDICATURE AT MADRAS
M.V. MURALIDARAN, J.
D. Srinivasan - Appellant
Versus
F.X. Denny (deceased) & Ors. - Respondents
C.M.S.A. No.16 of 2011 & M.P.No.1 of 2011
Decided On : 21-01-2019
For the Appellant : Mr. C.B. Muralikrishnan.
For the Respondents: Mr. R. Karunakaran
Headnote:
Code Of Civil Procedure, 1908 - Order 21, Rule 90 - Order 21, Rule 64 and 66 - Order 21, Rule 90 (3) - Order 41, Rule 11 and 17 - Order 21, Rule 72 - Section 47 - Section 100 – Sale Auction – Posession Of Property - Appellant has filed to set aside sale held stating that despite petition filed by appellant to adjourn sale, auction was held for Rs.42,00,000/ - Property sold in auction is property mortgaged to Palghat Permanent Fund Limited and original documents were with them - Without notice to Palghat Permanent Fund Limited, property was brought for Court auction and Palghat Permanent Fund Limited is necessary party in respect of sale - It is stated that first respondent/decree-holder had fraudulently filed sale papers without entry of mortgage details in encumbrance certificate - Auction without notice to Palghat Permanent Fund Limited cannot be sustained and prayed for setting aside court auction sale dated – Held, Respondents 2 to 4 deposited balance sale amount and Executing Court confirmed sale - Executing Court issued sale certificate in favour of respondents 2 to 4, which was duly registered at Sub Registrar Office - It is to be noted that after obtaining sale certificate, respondents 2 to 4 have filed for delivery of possession of property purchased by them in Court auction and said petition was contested by appellant - Executing Court ordered delivery of possession of property - Challenging same, appellant did not prefer any appeal, however, he had filed E.A.No.423 of 2008 under Section 47 CPC - By an order, E.A.No.423 of 2008 came to be dismissed by Executing Court on merit - On a through reading of affidavit filed in support of petition, appellant has not averred how sale was affected by irregularity and/or fraud - There is also no specific allegation put forth by appellant regarding irregularity and/or fraud in affidavit - After considering all materials produced before it, by an elaborate order, Executing Court dismissed E.A.No.1391 of 2009 and after analysing rival submissions, first appellate Court rightly confirmed order of Executing Court – Appeal Dismissed.
1. This Civil Miscellaneous Second Appeal is directed against the order of the learned II Additional City Civil Court, Chennai, dated 29.6.2010 made in C.M.A.No.135 of 2009, dismissing the appeal preferred by the appellant against the order dated 3.4.2009 passed in E.A.No.1391 of 2009 in E.P.No.1518 of 2004 in O.S.No.2138 of 2003 on the file of the X Assistant Judge, City Civil Court, Chennai.
2. The appellant is the judgment debtor; the deceased first respondent is the original decree-holder; the respondents 2 to 4 are the auction purchasers and the respondents 5 to 7 are legal heirs of the deceased first respondent/decree-holder.
3. The appellant has filed E.A.No.1391 of 2009 under Order 21, Rule 90 CPC to set aside the sale held on 29.11.2006 in E.P.No.1518 of 2004 in O.S.No.2138 of 2003 stating that despite petition filed by the appellant to adjourn the sale, auction was held on 29.11.2006 for Rs.42,00,000/-. The property sold in the auction is the property mortgaged to Palghat Permanent Fund Limited and the original documents were with them. Without notice to Palghat Permanent Fund Limited, the property was brought for Court auction and Palghat Permanent Fund Limited is necessary party in respect of the sale. It is stated that the first respondent/decree-holder had fraudulently filed sale papers without entry of mortgage details in the encumbrance certificate. The auction without notice to Palghat Permanent Fund Limited cannot be sustained and prayed for setting aside the court auction sale dated 29.11.2006 held in E.P.No.1518 of 2004.
4. Resisting E.A.No.1391 of 2009, the first respondent filed counter stating that the property was brought for sale on several dates fixed by the Court and finally on 29.11.2006, the respondents 2 to 4 have successfully bid in the auction for Rs.40,65,000/-. It is stated that the auction purchasers deposited the entire amount and the sale was confirmed and also sale certificate was issued in favour of the auction purchasers. It is also stated that there was no bona fide in the petition and prayed for dismissal of the petition.
5. The respondents 2 to 4/auction purchasers filed counter stating that they had participated in the Court auction held on 29.11.2006 on seeing the publication in Makkal Kural Tamil daily and became the successful bidders in the auction for the bid amount of Rs.40,65,000/-. It is stated that the encumbrance certificate does not contain particulars of the alleged mortgage of the property with Palghat Permanent Fund Limited and even in the petition, no particulars of mortgage was mentioned. Though the appellant filed petition in S.R.No.4328 of 2007, the same was returned and the appellant represented the petition on 20.2.2007. On 28.2.2007, notice was ordered and since there was no representation on the side of the appellant, the petition was dismissed for default. Without filing petition to restore the same, the appellant filed Civil Revision Petition and obtained an order to condone the delay in representation. Pursuant to the order in CRP, the said petition was numbered. It is also stated that the respondents 2 to 4 have deposited the entire bid amount on 13.12.2006 and the sale was confirmed on 7.2.2007. On 12.4.2007, sale certificate was registered with the Sub Registrar Officer, Konnur. Hence, prayed for dismissal of E.A.No.1391 of 2009.
6. Before the Executing Court, E.A.Nos.1391 and 1392 of 2009 were heard together. Upon consideration of the rival submissions, the Executing Court dismissed E.A.No.1391 of 2009 with costs of Rs.3000/- to the first respondent and Rs.1500/- each to respondents 2 to 4. The Executing Court also dismissed E.A.No.1392 of 2009. Challenging the order in E.A.No.1391 of 2009, the appellant had filed C.M.A.No.135 of 2009 before the II Additional Judge, City Civil Court, Chennai. By the judgment dated 29.6.2010, the appeal came to be dismissed confirming the order of the Executing Court. Challenging the same, the appellant has filed the
