Madras High Court
A.Sheir Mohammed vs Ramalingam on 21 April, 2015
Author: K.K.Sasidharan
Bench: K.K.Sasidharan
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 21.04.2015 CORAM THE HONOURABLE MR.JUSTICE K.K.SASIDHARAN C.R.P.(NPD) (MD) Nos.484 of 2015 & 485 of 2015 and M.P.(MD) Nos.1 & 1 of 2015 A.Sheir Mohammed ... Petitioner / Respondent / 2nd Respondent / 3rd Party ? Auction Purchaser in C.R.P.(NPD) (MD) No.484 of 2015 & ... Petitioner / Petitioner / 2nd Respondent 3rd Party ? Auction Purchaser in C.R.P.(NPD) (MD) No.485 of 2015 -vs- Ramalingam ... Respondent / Petitioner / Petitioner / 1st Respondent / 1st Defendant in C.R.P.(NPD) (MD) No.484 of 2015 & ... Respondent / Respondent / Petitioner / Petitioner / 1st Respondent / 1st Defendant in C.R.P.(NPD) (MD) No.485 of 2015 PRAYER (in C.R.P.(NPD) (MD) No.484 of 2015): Civil Revision Petition is filed under Article 227 of the Constitution of India, against the fair and decreetal order of the learned Principal District Munsif, Dindigul, in E.A.No.102 of 2013 in E.A.No.142 of 2011 in E.P.No.116 of 2007 in O.S.No.162 of 1999, dated 13.06.2014, on the file of the Principal District Munsif, Dindigul. PRAYER (in C.R.P.(NPD) (MD) No.485 of 2015): Civil Revision Petition is filed under Section 115 of the Code of Civil Procedure, against the fair and decreetal order in E.A.No.42 of 2014 in E.A.No.102 of 2013 in E.A.No.142 of 2011 in E.P.No.116 of 2007 in O.S.No.162 of 1999, dated 08.12.2014, on the file of the Principal District Munsif, Dindigul. !For Petitioner : Mr.A.Hariharan (in both C.R.Ps) ^For Respondent : Mr.H.Lakshmi Shankar (in both C.R.Ps) :COMMON ORDER
The auction purchaser in E.P.No.116 of 2007 in O.S.No.162 of 1999, dated 08.12.2014, on the file of learned Principal District Munsif, Dindigul, is the petitioner in both the civil revision petitions.
2. The respondent availed financial assistance from Vijaya Bank, Dindigul, by executing a mortgage deed. Since the respondent failed to pay the loan amount, the Bank filed a suit in O.S.No.162 of 1999, before the Court below. The Trial Court passed a preliminary decree on 18 July, 2000. The Bank filed an execution petition in E.P.No.116 of 2007 to execute the decree. The subject property was auctioned pursuant to the order passed by the Executing Court. The petitioner was declared as the successful bidder. The petitioner paid the initial amount and the balance amount.
3. The respondent filed an application in E.A.No.142 of 2011 under Order XXI Rule 90 of the Code of Civil Procedure, to set aside the sale. The learned Executing Judge allowed the application. Aggrieved by the order, dated 13 June, 2014, the petitioner filed an application in E.A.No.42 of 2014, under Order XLVII Rule 1 and Section 151 of the Code of Civil Procedure.
4. The learned Executing Judge dismissed the application. Feeling aggrieved by the orders, dated 13 June, 2014 and 08 December, 2014, the petitioner is before this Court.
5. Heard the learned counsel for respective parties.
6. The decree holder initiated execution proceedings in E.P.No.116 of 2007. The property was sold in public auction on 15 June, 2011. The offer made by the petitioner was accepted by the Executing Court. The respondent, thereafter, filed an application in E.A.No.142 of 2011, to set aside the same. The subsequent applications in E.A.Nos.102 of 2013 and 42 of 2014 were allowed by the Executing Court in favour of the respondent.
7. The Court question is as to whether the Executing Court was correct in recording full satisfaction and closing the execution petition on account of subsequent developments.
8. Though the respondent filed an application under Section 151 of the Code of Civil Procedure, the fact remains that it was essentially an application under Order XXXIV Rule 8 of the Code of Civil Procedure. The application was filed even before confirmation of sale. Since it was a redemption suit, the respondent was fully justified in paying the amount to redeem his property.
9. The learned counsel for the respondent contended that the petitioner is not an innocent purchaser. According to the learned counsel, the petitioner is an Advocate Clerk attached to a Lawyer, practicing before the Executing Court.
10. The Bank settled the matter with the respondent even before confirmation of sale. The petitioner has no case that the sale was confirmed by the Executing Court. The pendency of the application to set aside the application filed Order XXI Rule 90 of the Code of Civil Procedure, would not stand in the way of redeeming the mortgage before confirmation of sale. The respondent exercised his option permitted under Order XXXIV Rule 8 of the Code of Civil Procedure. Quoting of wrong provision would not alter the position. I am, therefore, of the view that there is absolutely no merit in the contention taken up by the petitioner.
11. In the upshot, I dismiss the civil revision petitions. No costs. Consequently, connected miscellaneous petitions are closed.
21.04.2015
Internet : Yes/No
Index : Yes/No
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K.K.SASIDHARAN, J
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To:
The Principal District Munsif,
Principal District Munsif Court,
Dindigul.
C.R.P.(NPD) (MD) Nos.484 & 485
of 2015
and
M.P.(MD) Nos.1 & 1 of 2015
21.04.2015