High Court · 2007

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 20-6-2007CORAMTHE HONOURABLE MR.JUSTICE M.CHOCKALINGAMC.R.P.NPD No.1346 of 19971.Marimuthammal2.D.Venkatachalam3.Saraswathi4.Ratinam @ Susheela.. Petitioners/JDvs1.Vaithi2.Venkatachalam3.Kannammal4.Thailammal5.Pachaiyappan6.Pachiayammal7.Mani8.Jayalakshmi9.Kannan10.Vijayalakshmi11.Saravanan.. Respondents(R11 GIVEN UP)Civil revision petition preferred under Sec.115 of the Codeof Civil Procedure against the fair and decretal order dated30.4.1997 in REA No.435 of 1984 in REP No.322 of 1978 inO.S.No.157 of 1970 on the file of the Additional SubordinateJudge, Salem.For Petitioners: Mr.D.ShivakumaranFor Respondents: Mr.R.Devaraj for R1 Mr.S.Rajasekaran for RR3 to 5 and 7 to 9 R11 given upORDERAn order of dismissal of an application in REA No.435 of1984 by the Additional Subordinate Judge, Salem, seeking to setaside the sale made in E.P.No.322 of 1978 pursuant to a decreepassed in O.S.No.157/70, is the subject matter of challenge inthis revision.2.The Court heard the learned Counsel on either side.3.Concededly, a suit was filed by the father of therespondents 4 to 10 herein namely Kandasami, in O.S.No.157 of1970 seeking the reliefs of specific performance and also mesneprofits. It was decreed. An appeal which arose therefrom, in https://hcservices.ecourts.gov.in/hcservices/ A.S.No.110 of 1972, was allowed, and the specific performancedecree was set aside. Following the same, an enquiry in respectof the mesne profits, was conducted, and by an order dated23.8.1978, the mesne profits was fixed at Rs.22,000/- pursuant towhich E.P.No.322/78 was filed on 29.11.1978. The property wasbrought for sale, and the auction was held on 9.9.1982. Whilethe matter stood thus, an application to set aside the ex-parteorder of sale was filed along with an application to condone thedelay of 2 days in re-presentation of the same. That applicationwas dismissed. Aggrieved, the judgment debtors took it in CRPNo.1969/83 before this Court, and the same was allowed. In themeanwhile, the sale originally made on 9.9.1982, was confirmed on30.11.1982. Against the order passed in the mesne profitsenquiry, one of the judgment debtors filed an appeal inA.S.No.24/79, and by a judgment dated 8.11.1983, it was modifiedas one for Rs.12,500/-. Not satisfied with the same, the decreeholder took it on appeal in LPA No.79/84 wherein it was furtherenhanced to Rs.18,000/-. 4.Under the circumstances, the instant application was filedby the judgment debtors seeking to set aside the sale on thegrounds that firstly, the property was actually having a higherextent of 2 acres and odd in one block, and 32 cents in the otherblock; that it was actually in excess; that the lower Court hasnot considered these aspects of the matter; but, the entireproperty was brought for sale; that secondly, the property waspurchased by the son-in-law of the decree holder; that it wascollusive; that thirdly, the payments were actually made inbetween; that those payments were not given credit to; thatfourthly, there was a modification of the original amount ofRs.22,000/- found on the enquiry of mesne profits; that it wasappealed against in A.S.No.24/79, where it was reduced; thatsubsequently by a letter patent appeal in LPA No.79/84, it wasenhanced; that all these things have been thoroughly suppressedby the decree holder; that on these grounds, the sale was to beset aside; that though all these contentions were urged beforethe Executing Court, it has not considered all or any one ofthem, but has dismissed the application, and hence, the order hasgot to be set aside. In support of his contention, the learnedCounsel for the petitioner relied on two decisions of the ApexCourt reported in (i) AIR 2001 SUPREME COURT 3832 (KRISHNA GOPALCHAWLA AND OTHERS V. STATE OF U.P. AND ANOTHER) and (ii) 2006-2-L.W. 770 (BALAKRISHNAN V. MALAIYANDI KONAR).5.Countering the above contentions, the learned Counsel forthe first respondent/auction purchaser would submit that in theinstant case, an order was passed in the year 1978 fixing themesne profits; that in order to recover the same, E.P. was filedin 1978; that the property was brought for sale; that it was soldin September 1982; that it has also been confirmed in November1982; that a sale certificate has also been issued; that only thedelivery is awaited; that in the appeal filed by the judgmentdebtor, there was no stay; that the appeal was allowed reducingthe mesne profits amount, only in November 1983; that the letterpatent appeal came to an end only in 1988; and that all thesehappenings were subsequent to the confirmation of sale. The https://hcservices.ecourts.gov.in/hcservices/ learned Counsel would further add that there is no evidence toshow that there was any collusion between the decree holder andthe auction purchaser, the first respondent herein; that therewas no suppression in the instant case as alleged by thepetitioner herein; and that since the third party-purchaserpurchased the property in September 1982, and it was subsequentlyconfirmed on 30.11.1982, and all these things have taken placesubsequently, no question of suppression would arise. Addedfurther the learned Counsel that it is true that the property ishaving an extent of 2 acres and odd in one block, and 32 cents inthe other block; that the property was sold in 1982; and that thevalue of the property in 1982 should be taken into consideration.The learned Counsel would further add that there is no questionof amendment of the decree that would arise at this stage sincethe sale was already confirmed in favour of the third party; thatas far as the auction purchaser is concerned, he is to tender therest of the amount; that as far as the decree holder isconcerned, if there is any amount available, he is to receive itand execute the decree; that the contentions what were all raisedbefore the lower Court, were put forth in this revision; thatthere is not even one irregularity that is noticed for settingaside the sale; that the lower Court has given an elaborate orderand rejected the contentions, and hence, it has got to besustained. 6.After careful consideration of the rival submissions made,this Court is of the considered opinion that the revision doesnot carry any merit whatsoever. Admittedly, pursuant to anenquiry for mesne profits, there was an order that Rs.22,000/-must be paid by the judgment debtors to the decree holder thatwas made on 23.8.1978. Thereafter, E.P. was filed in E.P.No.322of 1978, and the property was brought for sale and sold on9.9.1982. It was also confirmed on 30.11.1982. It is not incontroversy that the sale certificate has also been issuedpursuant to the confirmation of sale. Now, the contentions putforth by the learned Counsel for the petitioner remain forconsideration. 7.Firstly, this Court is unable to notice suppression of anyfact for the simple reason that the property was sold on9.9.1982, and the sale was confirmed in November 1982. Even inthe appeal filed by the judgment debtor in A.S.No.24/79, therewas no stay. Apart from that, the verified decree was passed in1983. In such circumstances, there was no impediment for thejudgment debtors to raise this point when the matter was pendingfor sale, but not done at that time. Subsequently, the revisionwas also pending in CRP No.1969/83, and pending the revision,there was no application for stopping the lower Court fromproceeding further. Now, at this juncture, it is pertinent topoint out that the sale confirmation has taken place on30.11.1982 even before the disposal of the revision. Addedfurther, even the LPA taken by the decree holder, also came to anend in 1988. Thus, all would go to show that the confirmation ofsale was earlier in point of time, and the subsequent happeningwas the said L.P.A. Under the circumstances, there is nosuppression of facts. https://hcservices.ecourts.gov.in/hcservices/

8.As far as the value is concerned, it cannot be said to beexcess value, since the property was having an extent of 2 acresand odd in one block and 32 cents in the other block, and thevalue of the property in the year 1982 has got to be taken intoaccount when the property was brought for sale. There was allpossibility for the judgment debtors to raise objections when theupset price was to be fixed by the Court. Having failed to doso, now they cannot raise such a contention at this stage. 9.As regards the amendment of the decree, now at thisjuncture, it cannot be permitted since it is out of point oflimitation. Even assuming that originally, the E.P. could becarried on, now, it is not the stage, in the considered opinionof the Court, for the simple reason that the property has beensold, and confirmation has also taken place, and it is in favourof the third party. Now, that sale cannot be set aside in theabsence of any irregularity as one contemplated in the C.P.C. 10.As regards the last contention as to the collusion, thereis no evidence to show that there was any collusion. Simplybecause the purchaser happened to be the son-in-law of the decreeholder, it cannot be presumed that there was collusion. Hence,all the contentions were rightly rejected by the lower Court.This civil revision petition requires an order of dismissal, andaccordingly, it is dismissed. No costs.nsv/Sd/Asst.Registrar/true copy/Sub Asst.RegistrarTo:The Additional Subordinate JudgeSalem+ ONE CC TO MR. D. Shivakumaran, Advocate sr o. 36604TEJ(CO)NM(27.06.07)CRP NPD No.1346 of 1997