JUDGMENT :

N. Sathish Kumar, J.

1. Aggrieved over the dismissal of Application filed under Section 47 of C.P.C. the present Revision is filed. The parties arrayed as per their own rankings as per the Trial Court.

2. The brief facts leading to file this Revision are as follows:

2(a). The First Defendant in O.S. No. 351 of 2003 entered into an Agreement for Sale of the property in favour of the Respondent on 22.1.2001 for a total Sale consideration of Rs. 2,07,900 & Rs. 10,000 paid advance on the date of Agreement. Time is agreed for three months to complete the sale. After Agreement on 14.2.2001 he has received further Rs. 25,000 as further Advance. At the time of Agreement the Plaintiff wanted some clarification regarding title. However, the First Defendant did not clarify the title. Since the First Defendant has made some arrangements to sell the property and also sold the property in favour of the Second Defendant the Plaintiff has filed Suit for recovery of Advance amount of Rs. 35,000 and also charge upon that property. In the above Suit the 1st Defendant has contested the Suit. The 2nd Defendant, who was the purchaser of the property from the 1st Defendant remained ex parte. It is the contention of the Revision Petitioner that the said Second Defendant died on 25.3.2005, whereas the Decree has been passed against both the Defendants only on 5.7.2005. The Petitioner has purchased the property from the 2nd Defendant's Legal Heirs on 27.7.2006. The Decree and Judgment passed against the Second Defendant is nullity. The Plaintiff has filed Execution Application without even impleading the L.Rs. of the Second Defendant and brought the property for sale. The Plaintiff herself with the permission of the Court has purchased the property in Court Auction. Only in the year 2010 on 6.3.2010, after the Respondent issued Legal Notice, the Revision Petitioner came to know about the Auction sale on the basis of the Decree passed against the dead person. Hence, he filed Application under Section 47 of CPC.

3. It is the contention of the Respondent that the Second Defendant set ex parte in Execution proceedings on 7.10.2009 the property was brought on sale. Sale was confirmed on 16.12.2009 in favour of the Plaintiff. The Petitioner has purchased the property during the pendency of the proceedings. Therefore, he is not a bona fide purchaser. Decree has already passed in respect of the property. Hence, prayed for dismissal of the Application.

4. In the Execution Petition, on the side of the Petitioner Exs. P1 to P9 filed and on the side of the Respondents no documents were marked. The Trial Court dismissed the Application filed under Section 47, C.P.C. on the ground that the Petitioner has purchased the property during the pendency of the proceedings; he is not a bona fide purchaser. Further, the Execution Court also held that the death of Second Defendant was not informed as per Order 22, Rule 10(a) of CPC. Hence, dismissed the Application as against which the present Revision Petition has been filed.

5. The learned Counsel appearing for the Revision Petitioner submitted that though the Respondent has entered into an Agreement said to have received Rs. 35,000 Advance towards Sale consideration; the sale has not been completed within three months. In fact, First Defendant has issued Legal Notice to complete the sale. Only the Plaintiff was not ready to complete the sale. It is his further contention that the property has been purchased by the 2nd Defendant from the 1st Defendant. Suit has been filed only in the year 2004 for recovery of Advance amount of Rs. 35,000 from the First Defendant in the event of failure to pay amount charged over the property. It is his further contention that the Second Defendant died on 25.3.2005, when the Suit was pending. Thereafter, the Suit was decreed on 5.7.2005, for return of Advance amount also creating charge over the property. Such Decree and Judgment is a nullity and unexcitable as against the 2nd Defendant.