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2019 Supreme(Mad) 1578
IN THE HIGH COURT OF JUDICATURE AT MADRAS
M.S. RAMESH, J.
Purushothaman – Petitioner
Versus
Ranganathan (deceased) & Another – Respondents
CRP. (NPD). No. 61 of 2015 & M.P. Nos. 1 to 3 of 2015
Decided On : 14-02-2019
For the Petitioner:K. Radha Krishnan, Advocate.
For the Respondent:D. Ravichander, Advocate.
Headnote:
Civil Procedure Code - Rule 69 - Order 21 - Constitution of India - Article 227 - Limitation Act - Article 127 - execution proceedings - illegal and requires to be set aside - Coimbatore for recovery - learned counsel for the respondent/decree holder, on the other hand submitted that, there was no infirmity in the auction sale. According to the learned counsel for the respondent, when the property has been sold in Court auction, the same is liable to be confirmed under Order 21 Rule 92 of CPC., in the absence of any application made under Order 21 Rule 89, 90, or 91 of CPC. Since the petitioner has not preferred to file any application under Rule 89, 90 or 91 of CPC., no indulgence requires to be extended to the petitioner herein. He would also submit that even if the provisions under Order 21 Rule 69 has been violated, it is an irregularity and the petitioner herein ought to have filed an application under Order 21 Rule 90 CPC – Held, situation in which the Honble Apex Court was constrained to observe as above, is almost similar to that of the case in hand. When this Court has found that the mandatory provision of Order 21 Rule 69(2) of CPC., has been violated and consequently held that the sale itself is illegal, the further proceedings in the execution would cause serious prejudice to the petitioner - Learned counsel for the respondent also submitted that the petitioner herein had deposited the entire claim amount on 11.10.2013 only, which is after 60 days from the date of sale i.e., from 28.06.2012 and in view of Order 21 Rule 89(1) of CPC., the Court cannot set aside the sale. In support of his submissions, the learned counsel for the respondent relied upon the decision of the Honble Apex Court in Ram Karan Gupta V. J.S. Exim Limited and others reported in 2012 (13) SCC 568. I do not intend to go into this proposition, as the law is well settled on that aspect. Nevertheless, since this Court has held that the sale itself is vitiated in view of the illegality committed by violating the provisions of Order 21 Rule 69(2) of CPC., such a ground raised does not require any consideration - It is now brought to my notice that the entire claim amount in the execution proceedings along with future interest has already been deposited before the Execution Court. As such, the interest of the respondent herein, who is the decree holder is well protected and he would be entitled to withdraw the sum. The petitioner herein, who is the judgment debtor, having discharged his entire liability, would be entitled to revive his property and thereby, auction sale conducted by the Execution Court on 28.06.2012 in E.P.No.93 of 2009 in O.S.No.20 of 2006, is hereby set aside - In view of these findings, the respondent herein/decree holder is granted liberty to make an appropriate application before the Execution Court seeking for withdrawal of the decree amount lying in its deposit. It is needless to mention here that the auction purchaser, who is claimed to have deposited 5% of the auction sale amount before the Execution Court, will also be entitled to withdraw the same – Petition allowed
JUDGMENT :
(Prayer: Civil Revision Petition is filed under Article 227 of the Constitution of India, to direct the learned I Additional Sub-ordinate Judge, Cuddalore to re-open the execution proceedings in E.P.No.93 of 2009 in O.S.No.20 of 2006 which was closed on 12.12.2014.)
1. The present revision is filed seeking for reopening of the execution proceedings in E.P.No.93 of 2009 in O.S.No.20 of 2006, which came to be closed on 12.12.2014 by the learned I Additional Sub-ordinate Judge, Cuddalore.
2. Heard Mr.K.Radha Krishnan, learned counsel for the petitioner and Mr.D.Ravichander, learned counsel appearing on behalf of the respondent.
3. The brief facts of the case is as follows:
(3.1) The first respondent/deceased Ranganathan had filed a money suit in O.S.No.20 of 2006 before the learned Principal Subordinate Judge, Cuddalore and a decree was passed against the petitioner herein directing payment of a sum of Rs.2,53,800/- together with interest on Rs.2 lakhs at the rate of Rs.9% per annum from the date of plaint till the date of decree and thereafter, at 6% per annum from the date of decree till the date of realization together with costs.
(3.2) Pursuant to the decree, the respondent herein had filed an execution petition in E.P.No.93 of 2009 before the learned I Additional Subordinate Judge, Coimbatore for recovery of Rs.3,32,059/- by attaching and selling the petitioner's residential property comprised in Sur.No.28/1 of Koothapakkam Village, Cuddalore District measuring 1800 Sq. feet. The Execution Court had attached the said property and the proclamation of sale was ordered on 08.03.2012. The property came to be auctioned on 28.06.2012 and sold for a sum of Rs.6,51,000/-.
(3.3) The petitioner herein had obtained a lodgment schedule challan on 11.10.2013 and had deposited the entire amount claimed in the Execution Petition to the tune of Rs.4,11,650/-, which includes the further interest also. Thereafter, he had filed two applications in the execution proceedings seeking for leave to file additional documents and for leading oral evidence. However, Execution Petition came to be dismissed on 12.12.2014. Being aggrieved by the closure of the execution proceedings, the present Civil Revision Petition has been filed.
4. The sole ground raised by the learned counsel for the petitioner herein is that when a sale is adjourned under Order 21 Rule 69(1) of CPC., for a longer period over 30 days, a fresh sale proclamation requires to be issued under Rule 67, prescribing the time and date of sale. Since the sale proclamation was made by the Execution Court on 08.03.2012 and subsequently adjourned to 07.06.2012, which adjournment is more than 30 days, the consequent sale made on 28.06.2012 is illegal and requires to be set aside.
5. The learned counsel for the respondent/decree holder, on the other hand submitted that, there was no infirmity in the auction sale. According to the learned counsel for the respondent, when the property has been sold in Court auction, the same is liable to be confirmed under Order 21 Rule 92 of CPC., in the absence of any application made under Order 21 Rule 89, 90, or 91 of CPC. Since the petitioner has not preferred to file any application under Rule 89, 90 or 91 of CPC., no indulgence requires to be extended to the petitioner herein. He would also submit that even if the provisions under Order 21 Rule 69 has been violated, it is an irregularity and the petitioner herein ought to have filed an application under Order 21 Rule 90 CPC., to set aside the sale on the ground of irregularity. Since Article 127 of the Limitation Act, prescribes a limitation of 60 days to set aside the sale and the petitioner has not been filed any application under Order 21 Rule 90 CPC., his submission that the sale requires to be set aside for violation of the procedure under Order 21 Rule 69 of CPC., cannot be countenanced and as such, he sought for rejection of the civil revision petition.
6. I have given careful consideration to the s
