An auction sale is invalid if mandatory notice requirements are not met, allowing a party to challenge the execution process under Section 47 of CPC.

ORDER :

P.B. Balaji, J.

The auction purchaser in a Court auction sale, aggrieved by the order passed by the executing Court, allowing an application under Section 47 of CPC , is the revision petitioner.

2.I have heard Mr.P.Ravi Shankar Rao, learned counsel for the petitioner, Mr.N.Suresh, learned counsel for the 1^st respondent, Mr.Ayyachamy, learned counsel for the 2^nd respondent and Mr.R.Thirugnanam, learned counsel for the 3^rd respondent.

3.Mr.P.Ravi Shankar Rao, learned counsel appearing for the revision petitioner would submit that the very application filed by the 1^st respondent/judgment debtor, invoking the provisions of Section 47 of CPC was not maintainable and the only remedy available to the 1^st respondent was to invoke Order XXI Rule 90 of , seeking to set aside the auction sale in favour of the revision petitioner. He would further submit that the suit came to be decreed on 01.07.2004 and even pending the suit, the order of attachment before the judgment had been passed on 26.06.2004 in I.A.No.322 of 2004.

4.Inviting my attention to the attachment being communicated to the Sub-Registrar on 15.07.2004, the learned counsel for the petitioner would submit that even prior to the filing of the EP, the attachment of the subject property was very much subsisting and in force. He would further state that even in the EP proceedings, notice was ordered by the Court on 12.04.2005 and even though notice was sent to the registered address of the 1^st respondent, the 1^st respondent refused to receive notice and thereafter, the executing Court proceeded to auction the suit property and the revision petitioner was the successful bidder and the sale itself came to be confirmed on 13.10.2005 and the sale certificate was also issued in favour of the revision petitioner on 17.11.2005.

5.It is also the contention of the learned counsel for the petitioner that the judgment debtor, in order to defeat the claim of the decree holder, as well as the auction purchaser, filed a suit for partition in O.S.No.33 of 2005 and a preliminary decree was passed on 29.07.2005 in the said suit. It is also the contention of the learned counsel for the petitioner that the property was also delivered to the revision petitioner by the Court Bailiff on 03.01.2005 in E.A.No.851 of 2005. In such circumstances, it is the submission of the learned counsel for the petitioner that the judgment debtor, only in order to get over his inability to challenge the auction sale under Order XXI Rule 90 of CPC , which is time bound and also to bypass the mandatory requirement of deposit of a portion of the consideration as mandated under Order XXI Rule 89 of , has invoked Section 47 of .

6.The learned counsel for the petitioner would therefore submit that the trial Court has erroneously allowed the Section 47 of CPC application, when the 1^st respondent has invoked a wrong provision of law, only to get over the shortcomings and inability of the 1^st respondent to legitimately challenge the auction sale under Order XXI Rule 90 of . The learned counsel for the petitioner would rely on the following decisions:

1. A.P.V.Rajendran Vs. S.A.Sundararajan and others , reported in Law Weekly 93.

2. S.A.Sundararajan Vs. A.P.V.Rajendran , reported in (1981) 2 SCR 600 .

3. Shri Radhey Shyam Vs. Shyam Behari Singh , reported in 1970 (2) SCC 405 .

4. K.M.Balasubramanian Vs. C .Loganathan, r