ORDER

This revision petition is filed by the petitioner / judgment debtor as against the return endorsement made by the learned Subordinate Judge, Sankarankovil / Execution Court, on his application filed under Order 21 Rule 89 CPC.

2.The petitioner has filed an execution application in E.P.No.

43 of 2015 in O.S.No.203 of 2013 to set aside the sale conducted on 22.08.2022, on the ground that he is prepared to deposit the decree amount. The Execution Court returned the application on 26.10.2022, with the following endorsement:

“Already sale notice served to this petitioner /

respondent properly about sale amount. Hence, how this petition is maintainable under Order 21 Rule 90(3) CPC, as the petitioner can take the ground before proclamation of sale. Hence returned.”

The petitioner re-presented the papers on 03.11.2022, by correcting the provision as Order 21 Rule 90 CPC, instead of Order 21 Rule 89 CPC. Thereafter, the Execution Court returned the papers on the same day, with the following endorsement:

“1.Advocate sign not made in re-presentation.

2.Sale notice served to the respondent already. Sale also confirmed. Hence, how this petition is maintainable at this stage. Hence returned.”

The petitioner re-presented the papers on 04.11.2022, stating that the petition was filed even before the confirmation of sale. However, the Execution Court has again returned the papers on 04.11.2022. Hence, the petitioner has moved the instant revision petition.

3.Learned Counsel for the petitioner submitted that the suit property was auctioned for a lesser amount of Rs.17,09,000/-. The petitioner conducted a private negotiation and has entered into an agreement with one Gopalakrishnan S/o.Senthilvel, wherein, the said Gopalakrishnan undertook to purchase the suit property for a sum of Rs.40,00,000/- and also to deposit the decree amount before the Court. Along with this agreement, the petitioner has filed the execution application within the period of limitation, however, by quoting the wrong provision as Order 21 Rule 90 CPC, instead of Order 21 Rule 89 CPC. Therefore, the application was returned and thereafter, the same was also rectified and re-presented by the petitioner. Even then, the Court has returned the papers.

4.By relying upon the decision of this Court in Selvaraj and Others v. Koodankulam Nuclear Power Plant India Ltd., and Others, reported in 2021 (4) CTC 539, the learned Counsel contended that before making repeated returns, the learned Judge ought to have listed the matter in the open Court and heard him.

5.This Court paid it's anxious consideration to the submissions made by the petitioner's Counsel and also to the materials placed on record.

6.The petitioner / judgment debtor has filed an application under Order 21 Rule 89 CPC along with an unregistered agreement entered into between him and one Gopalakrishnan S/o.Senthivel, wherein, the said Gopalakrishnan undertook to purchase the suit property for a sum of Rs.40,00,000/- and also to deposit the decree amount before the Court. It is the grievance of the petitioner that the property was auctioned for a lesser amount of Rs.17,09,000/- and therefore, he prayed for setting aside the sale. However, this application was returned and in the meantime, the sale was confirmed.

7.In the decision relied upon by the learned Counsel for the petitioner in Selvaraj's case (supra), this Court, following the decision in S.Parameswari v. Denis Lourdusamy [(2011) 5 CTC 742], held that after one return, the Court should post the matter in the open Court and invite the arguments of the Counsel on the question of maintainability and thereafter, pass a judicial order. The duty to hear before a decision is made constitutes the soul of procedural fairness inbuilt in the Civil Procedure Code and cannot be compromised. The relevant portion from the said decision is extracted as follows:-

“30. In S. Parameswari v. Denis Lourdusamy, [(2011) 5 CTC 742], this Court had held that after one return, the Court should pos