C.R.P.Nos.3062 & 3063 of 2008

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 08.12.2022

CORAM

THE HONOURABLE MR. JUSTICE N. ANAND VENKATESH

C.R.P.Nos.3062 & 3063 of 2008

C.R.P.No.3062 of 2008

S.Sambavi

... Petitioner

Vs.

1.Balasundaram (Died)

2.D.R.Balaji

3.K.B.Banumathi

4.B.Kandasami

5.R.Sumathi

... Respondents

[Respondents 3 to 5 brought on record as LRs of the deceased R1 viz.,

Balasundaram vide Court order dated 08.12.2022 made in CMP No.9182

of 2022 in CRP No.3062 of 2008]

Prayer : Civil Revision Petition is filed under Article 227 of the

Constitution of India, against the order in E.A.No.5437 of 2007 dated

31.03.2008 in E.P.No.978 of 2002 on the file of the X Assistant Judge,

City Civil Court, Chennai in O.S.No.7146 of 2000.

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C.R.P.Nos.3062 & 3063 of 2008

For Petitioner

: Mr.P.Sankaranarayanan

For Respondents : Mr.B.Premkumar for R1

Mr.R.Rajesh for R2

C.R.P.No.3063 of 2008

D.R.Balaji

... Petitioner

Vs.

1.Balasundaram (Died)

2.S.Sambavi

3.K.B.Banumathi

4.B.Kandasami

5.R.Sumathi

... Respondents

[Respondents 3 to 5 brought on record as LRs of the deceased R1 viz.,

Balasundaram vide Court order dated 08.12.2022 made in CMP No.10422

of 2022 in CRP No.3063 of 2008]

Prayer : Civil Revision Petition is filed under Article 227 of the

Constitution of India, against the order in E.A.No.5437 of 2007 dated

31.03.2008 in E.P.No.978 of 2002 on the file of the X Assistant Judge,

City Civil Court, Chennai in O.S.No.7146 of 2000.

For Petitioner

: Mr.R.Rajesh

For Respondents : R1 - unclaimed

Mr.P.Sankaranarayanan for R2

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C.R.P.Nos.3062 & 3063 of 2008

O R D E R

The issue involved in both the Civil Revision Petitions are common

and hence they are taken up together, heard and disposed of through

this common order.

2.The decree holder is the petitioner in C.R.P.No.3062 of 2008 and

the Auction Purchaser is the petitioner in C.R.P.No.3063 of 2008. Both

have challenged the fair and final order passed by the Court below in

E.A.No.5437 of 2007 allowing the application filed by the judgment

debtor under Order XXI Rule 89 of C.P.C. for setting aside the sale on

deposit of the decree amount and 5% of the purchase money paid by the

auction purchaser.

3.The brief facts of the case is that the petitioner in C.R.P.No.3062

of 2008 filed a suit for recovery of a sum of Rs.70,400/- against the

judgment debtor along with further interest on the principal amount. This

suit in O.S.No.7146 of 2000 came to be decreed by Judgment and Decree

dated 16.04.2001. Since the Decree was not complied with by the

judgment debtor, the decree holder filed E.P.No.978 of 2002 to recover

the amount by bringing the property of the judgment debtor for sale.

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C.R.P.Nos.3062 & 3063 of 2008

4.In the above Execution Petition, auction was conducted on

08.08.2007, in which several bidders participated and the petitioner in

C.R.P.No.3063 of 2008 was the highest bidder and he also deposited the

entire bid amount.

5.The judgment debtor initially filed an Application under Order XXI

Rule 90 of C.P.C. to set aside the sale on the ground that the sale is

vitiated due to fraud. When this application was pending, the judgment

debtor filed E.A.5437 of 2007, under Order XXI Rule 89 of C.P.C. to set

aside the sale on deposit. The earlier application that was filed by the

judgment debtor under Order XXI Rule 90 of C.P.C., was withdrawn

during the pendency of the application in E.A.No.5437 of 2007, on

01.11.2007. Subsequently, the application filed in E.A.No.5437 of 2007

was taken up for hearing and the Court below on considering the facts

and circumstances of the case and after taking into account the deposit

of the entire decree amount and 5% of the purchase money, allowed the

application through a fair and final order dated 31.03.2008. Aggrieved by

the same, the decree