The executing court must ensure only necessary property is sold to satisfy a decree, and dismissal of a claim under Order XXI Rule 58 does not bar a subsequent application under Order XXI Rule 90 for material irregularity.

ORDER :

Prayer in C.R.P.(NPD).No.4092 of 2023: Civil Revision Petition filed under Article 227 of the Constitution of India to set aside the impugned fair and decretal order dated 14.09.2023 passed in I.A.No.3 of 2022 in C.M.A.No.14 of 2019 by the learned Additional District Judge, Dharmapuri.

Prayer in C.R.P.(NPD).No.4093 of 2023: Civil Revision Petition filed under Article 227 of the Constitution of India to set aside the impugned fair and decretal order dated 14.09.2023 passed in C.M.A.No.14 of 2019 by the learned Additional District Judge, Dharmapuri dismissing the said CMA and thereby confirming the fair and decretal order dated 30.08.2019 passed in REA.No.56 of 2017 in REP.No.46 of 2008 in O.S.No.70 of 2005 by the learned Principal Sub Court, Dharmapuri.

C.R.P.No.4093 of 2023 arises against the orders passed by the learned Additional District Judge at Dharmapuri in CMA.No. 14 of 2019 dated 14.09.2023 in confirming the order and decretal order of learned Principal Subordinate Judge at Dharmapuri in REA.No.56 of 2017 in REP.No.46 of 2008 in O.S.No.70 of 2005 dated 30.08.2019.

2. Pending the Civil Miscellaneous Appeal before the learned Additional District Judge, an application was filed by the civil revision petitioner in I.A.No.3 of 2022 under Order XLI Rule 27 to receive the valuation report of the approved valuer, death certificates of one Panjalai and M.G.Sami and their legal heirship certificate, and Panchayat Muchalika dated 17.08.2003. The said application came to be dismissed, while dismissing the Civil Miscellaneous Appeal. Hence, C.R.P.No.4092 of 2023.

3. Since both the revisions arise out of a common judgment, they were clubbed together and arguments were addressed on both matters.

4. The undisputed facts leading to these revisions are one Bose Ponnambalam filed a suit for recovery of money of Rs.3,50,000/- before the Subordinate Court at Dharmapuri. This suit was taken on file as O.S.No.70 of 2005. Pending the suit, an application was taken for attachment of the suit schedule mentioned properties in I.A.No.200 of 2005. The said application came to be allowed and an order of attachment was passed. Since the defendant had not contested the suit, the matter ended in an exparte decree on 07.02.2006. To execute this exparte decree, Bose Ponnambalam (hereinafter referred to as “the decree holder”), filed E.P.No.46 of 2008.

5. In order to set aside the exparte decree, an application was taken in I.A.No.436 of 2011. This was an application to condone the delay in filing an application to set aside the exparte decree. Learned Subordinate Judge dismissed the condone delay application against which a civil revision petition was preferred in CRP.No.2199 of 2016. The said revision was dismissed on 09.11.2016. To review the order passed in CRP.No.2199 of 2016, review application No.218 of 2017 was filed. This application came to be dismissed on 26.03.2018. Aggrieved by the dismissal, a Special Leave Petition was preferred to the Supreme Court in SLP(Diary) No.20297 of 2018. The said Special Leave Petition was dismissed on 17.01.2020. I am narrating the aforesaid particulars of litigation for the purpose of stating that the decree passed on 07.02.2006 and the attempts to set aside the same had attained finality.

6. Now turning to the execution proceedings, notices were issued in E.P.No.46 of 2008 by the learned Subordinate Judge. Notices were served on 21.07.2008. After having received notices in the execution petition, the judgment debtors remained absent. An order setting them exparte was passed on 18.03.2009. The Executing Court proceeded further with the execution and called for the valuation of the property. Though the attachment was sought for two items of property that came to be attached, the execution proceedings took place only with respect to item No.2 of the execution petition schedule property.

7. The decree holder valued the property at Rs.7,00,000/-. The test report from the Amin valued item No.2 of the property at Rs.2