CRP.No.1235 of 2016

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 31.01.2023

CORAM:

THE HONOURABLE MR. JUSTICE G.K.ILANTHIRAIYAN

CRP.No.1235 of 2016 and

CMP.No.6742 of 2016

Raja

... petitioner

Vs.

1.Muthapillai(died)

2.Kaliyamurthy

3.Devaki

4.Aivazhagan(died)

5.Amutha

6.Kavitha

7.Minor A.Eswari

Rep. By guardian/next friend Mother-Kavitha

8.minor A.Thirumalaiarasu

Rep. By guardian/next friend Mother-Kavitha

(R3 to 5 brought on record as LR's of the deceased R1

vide court order dated 21.06.2021 made in CMP.No.

5722 of 2021 in CRP.No.1235 of 2016)

(R6 to 8 brought on record as LR's of the deceased

R4 Viz., Arivazhagan vide court order dated 08.12.2022

in CMP.Nos.11295, 11297 of 2022 in

CRP.No.1235 of 2016)

... Respondents

PRAYER:

Civil Revision Petition filed under Section 115 of CPC to set aside the fair

and decretal order dated 18.03.2016 made in EA.No.25 of 2015 in EP.No.106 of

2007 in OS.No.79 of 2005 on the file of the learned Sub Court, Kallakurichi by

allowing this civil revision petition.

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CRP.No.1235 of 2016

For Petitioner : Mr.N.Manokaran

For Respondents

For R3 & 5,

6 to 8 : Mr.V.Gunasekar

ORDER

This civil revision petition has been filed to set aside the fair and

decretal order dated 18.03.2016 made in EA.No.25 of 2015 in EP.No.106 of 2007

in OS.No.79 of 2005 on the file of the learned Sub Court, Kallakurichi, thereby

allowed the petition and set aside the sale in favour of the petitioner herein.

2.

The second respondent filed suit for recovery of money against the

first respondent herein on the strength of the pronote executed by him. It was

decreed by the judgment and decree dated 03.04.2007. On the strength of the

decree passed in OS.No.79 of 2005, the decree holder filed execution petition in

EP.No106 of 2007 as against the first respondent herein. While pending the

execution petition, the judgment debtor filed appeal suit along with condone delay

petition in IA.No.38 of 2008 and the same was dismissed for default. In order to

restore the condone delay petition, the judgment debtor filed another application in

IA.No.175 of 2009 and the same was also dismissed. Aggrieved by the same, the

judgment debtor preferred appeal in CMA.No.1833 of 2010 and the same was

allowed on payment of cost of Rs.3,000/-. However, the cost was not paid and as

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CRP.No.1235 of 2016

such, the appeal was also dismissed. Therefore, in the execution petition, the suit

property was subjected for auction sale on 21.11.2012. The petitioner is being the

highest bidder, purchased the property. He had deposited the entire sale price by

two instalments. Accordingly, on 22.11.2012, he had paid a sum of Rs.1,73,990/-

and on 26.11.2012, he paid the remaining sale consideration of Rs.6,56,330/-. The

judgment debtor challenged the sale in the civil revision petition before this Court in

CRP.No.4509 of 2012 and this Court dismissed the civil revision petition and

observed that the sale cannot be set aside since already the auction purchaser had

deposited the entire sale consideration in the execution petition. Further observed

that the judgment debtor is at liberty to work out his remedy before the execution

court by filing an appropriate application in accordance with law.

2.1

Utilising the said observation, the judgment debtor again filed another

application under Section 47 of CPC to set aside the sale dated 21.11.2012. The

execution court converted the said application into application under Order 21 Rule

89 of CPC for the reason that the decree amount should be deposited within a

period of 60 days as contemplated under Order 21 Rule 92 sub clause (2) of CPC.

Therefore, the application filed under Section 47 of CPC is not barred by limitation

and converted into application under Order 21 Rule 89 of CPC. Further, at the time

of the interim order passed by this Court in CRP.No.4509 of 2012, imposed

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