The main legal point established in the judgment is that the execution proceedings must adhere to the mandatory procedures set out in the Code of Civil Procedure, and any irregularities, including the non-service of mandatory notices, fraud, and collusion, can lead to the sale being set aside.

JUDGMENT

(Prayer: This Civil Miscellaneous Second Appeal is filed under XXI Rule 90 of A.S.Rules read with Section 100 Code of Civil Procedure against the judgment and decretal order of the learned Subordinate Judge, Namakkal dated 01.11.2017 in C.M.A.No.2 of 2007, confirming the fair and decretal order of the learned Additional District Munsif, Namakkal dated 06.12.2006 in E.A.No.927 of 2005 in E.P.No.149 of 2003 in O.S.No.768 of 1994.)

1. The legal representatives of the Judgment Debtor are the appellants before this Court challenging the order passed by the learned Additional District Munsif, Namakkal in E.A.No.927 of 2005 in E.P.No.149 of 2003 filed by the first respondent herein to execute the decree obtained by him in O.S.No.768 of 1994 on the file of the very same Court.

Facts of the case:

2. It would be necessary to give a brief history of the facts, which has ultimately culminated in the filing of the impugned application by the appellants herein under Order XX1 Rule 90 of the Code of Civil Procedure Code, hereinafter for the sake of brevity referred to as CPC.

(i) The first respondent herein had filed a suit O.S.No.768 of 1994 on the file of the Additional District Munisf, Namakkal against one Dharmalingam, who is the husband of the first appellant and the father of the appellants 2 to 4 herein. The suit was filed for recovery of amounts due under a promissory note. On 05.12.1994, the said suit was decreed and the said Dharmalingam was directed to pay a sum of Rs.14,498/- together with interest at the rate of 6% on Rs.13,000/- from the date of the decree till the date of payment. Thereafter, the first respondent- Decree Holder had filed E.P.No.87 of 1999 on the file of the Additional District Munsif seeking an attachment of the properties belonging to the said Dharmalingam. Pending the execution proceedings, the said Dharmalingam had died and E.A.No.319 of 2000 was filed to bring the appellants on record as the legal representatives. The first appellant was represented by a counsel. However, appellants 2 to 4 being minors were represented by a Court Guardian, Ms.Alli. A counter was filed on behalf of the minors by the Court Guardian. However, no counter was filed by the first appellant. Therefore, an ex-parte order was passed on 06.04.2002 against the first appellant. Since the decree holder had not taken steps to file batta in the execution proceedings, the execution petition came to be dismissed for default on 14.08.2002. No steps are taken to restore the same.

Proceedings in the subsequent execution petition under order XXI Rule 90 C.P.C.

(ii) Thereafter, the present execution proceedings in E.P.No.149 2003 was filed by the first respondent for the very same reliefs as claimed in the earlier execution proceedings. It is the case of the appellant that on 31.12.2003, when the matter was first listed, the first appellant had appeared before the Court. However, the Court had not taken note of her presence and had passed the ex-parte order of attachment. Thereafter, the property was sold in auction and the second respondent was the successful bidder. Finally, he was issued with the sale certificate. However, the appellants were not aware of the said order and they had come to know about the orders just before the filing of the impugned application. In the affidavit filed in support of the application under the provisions of Order XX1 Rule 90 of C.P.C, the appellants have raised the following grounds.

a) Though the first appellant was present before this Court on 31.12.2003 in response to the summons in R.E.P.No.149 of 2003, her presence was not noted and she has been set ex-parte.

b) The first appellant's name has been wrongly described in the proceedings as Papayee and not Papathi and all notices have been issued in the name of Papayee and not to the first appellant, Papathi.

c) No notice has been issued prior to reduction of the upset price in R.E.A.No.556 of 2004 to any