Madras High Court
P.Ashokmithran vs N.Jayanthi ... 1St on 8 May, 2025
C.M.S.A.(MD)No.40 of 2015
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Reserved on : 28.04.2025
Pronounced on : 08.05.2025
CORAM:
THE HONOURABLE MRS.JUSTICE L.VICTORIA GOWRI
C.M.S.A.(MD)No.40 of 2015
and
M.P.(MD)No.2 of 2015 and C.M.P.(MD)No.8746 of 2017
P.Ashokmithran ... Appellant / 3rd respondent /
3rd respondent / Auction Purchaser
Vs.
1.N.Jayanthi ... 1st respondent / 3rd respondent /
petitioner / Claimant obstructor
2.M/s.Canara Bank,
Kottar Branch,
Chetty Street, Nagercoil,
Vadiveeswaram Village,
Agasteeswaram Taluk,
Kottar. ... 2nd respondent / 1st respondent/
1st respondent / Decree holder
3.S.Nagarajan ... 3rd respondent / 2nd respondent /
2nd respondent / Judgment Debtor
PRAYER: Civil Miscellaneous Second Appeal filed under Order 43 Rule
1 of Code of Civil Procedure r/w under Section 100 of Code of Civil
Procedure, 1908, to set aside the fair and decreetal order dated
04.09.2015 made in C.M.A.No. 17 of 2013 on the file of the District
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https://www.mhc.tn.gov.in/judis ( Uploaded on: 06/06/2025 04:21:42 pm )
C.M.S.A.(MD)No.40 of 2015
Judge, Kanyakumari at Nagercoil reversing the judgment and decree
dated 21.08.2023 made in E.A.No.168 of 2012 in E.P.No.50 of 2000 in
O.S.No.234 of 1998 on the file of the First Additional Subordinate
Judge, Nagercoil.
For Appellant : M/s.N.Krishnaveni,
Senior counsel,
For Mr.P.Thiagarajan
For R-1 : Mr.S.Meenakshisundaram,
Senior counsel,
Mr.R.T.Arivukumar
For R-2 :Mr.C.Karthick
For R-3 : No appearance
JUDGMENT
This Civil Miscellaneous Second Appeal is preferred by the auction purchaser in E.P.No.50 of 2000 in O.S.No.234 of 1998 on the file of the First Additional Subordinate Judge, Nagercoil. O.S.No.234 of 1998 was a suit for recovery of money filed by the Canara Bank (Kottar Branch) at Chetty Street, Nagercoil, as against the defendant one S.Nagarajan for recovery of an amount of Rs.1,52,682.89 with future interest calculated at a rate of 19.85% as per annum. 2/59 https://www.mhc.tn.gov.in/judis ( Uploaded on: 06/06/2025 04:21:42 pm ) C.M.S.A.(MD)No.40 of 2015
2.I.A.No.384 of 1998 was filed in O.S.No.234 of 1998 for attachment before judgment by the plaintiff bank and the same was allowed on 01.04.1999 with respect to the property comprising an area of 0.750 cents comprised in T.S.No.Q-7/ 72 and 3 cents land comprised in T.S.No.Q-7/75, comprising a total area of 3.750 cents wherein the building bearing name “Saranya Lodge” is situated. The aforesaid property was attached by Amin who executed an attachment order marked as Ex.P-7 on 25.06.1999 and the report of the Amin in this regard was also filed duly on 25.06.1999 by the Amin on the file of the Subordinate Judge's Court at Nagercoil in I.A.No.384 of 1998 in O.S.No. 234 of 1998. The description of the property attached by the Amin is as Hotel Saranya, Thalavai Street. In the meanwhile, on 30.06.1999 an ex- parte decree was passed by the learned Trial Court for an amount of Rs. 1,52,682.89 with interest at a rate of 19.85% and the attachment was made absolute.
3.Thereafter, an execution petition in E.P.No.50 of 2000 was filed by the plaintiff / decree holder for the sale of the property attached. The property attached was brought for sale at the first instance on 09.12.2002 and thereafter adjourned for 10 times, on every occasion, fresh sale proclamation was made and the sale upset price was reduced and finally the Court auction was conducted on 17.06.2010 for an 3/59 https://www.mhc.tn.gov.in/judis ( Uploaded on: 06/06/2025 04:21:42 pm ) C.M.S.A.(MD)No.40 of 2015 amount of Rs.7,00,000/- and the auction purchaser one Ashokamithran purchased the property in the Court order and the same was confirmed on 18.08.2010. The auction purchaser along with Court Amin visited the property to effect delivery on 23.09.2011, on which day, delivery was obstructed by one Jeyanthi, claiming that she had purchased the property sought to be attached from one Nepalraj on 02.01.2008 and that her vendor Nepalraj had purchased the same from the judgment debtor one Nagarajan on 25.11.1999. Pursuant to the same, the claimant obstructor, namely, Jeyanthi, filed an application in E.A.No.168 of 2012 in E.P.No.50 of 2000 in O.S.No.234 of 1998 under Order 21 Rule 90 of Code of Civil Procedure, 1908, to set aside the sale in favour of the auction purchaser/Ashokamithran on the ground of irregularity or fraud.
4.The application in E.A.No.168 of 2012 was dismissed by the learned Trial Court on 21.08.2013, against which a civil miscellaneous appeal in C.M.A.No.17 of 2013 was filed by the claimant obstructor before the learned District Judge's Court Kanyakumari at Nagercoil. The learned District Judge was pleased to set aside the order passed by the learned Trial Court in E.A.No.168 of 2012, thereby allowing C.M.A.No. 17 of 2013 filed by the claimant obstructor by judgment and decree dated 04.09.2015. Challenging the same, the auction purchaser is 4/59 https://www.mhc.tn.gov.in/judis ( Uploaded on: 06/06/2025 04:21:42 pm ) C.M.S.A.(MD)No.40 of 2015 before this Court, by way of this C.M.S.A.. In the meanwhile, the auction purchaser Ashokamithran also filed another Execution Application in E.A.No.269 of 2011 in E.P.No.50 of 2000 seeking recovery of possession which was also dismissed by the learned Trial Court, in view of the judgement and decree passed in C.M.A.No.17 of 2013 dated 04.09.2015 passed by the learned District Judge Kanyakumari at Nagercoil, in favour of the claimant obstructor.
5.For the sake of convenience, the parties herein are referred as per their ranking in the execution petition in E.P.No.50 of 2000.
Submissions:
6.The learned senior counsel appearing for the auction purchaser, Ashokamithran, categorically submitted that, the affidavit filed by one Jeyanthi, that is, the claimant obstructor in E.A.No.168 of 2012, had no whisper as to the fact that the subject property attached was comprised in R.S.No.Q-7/76 and R.S.No.Q-7/78. He further submitted that, the application made by the claimant obstructor is not maintainable since the sale deed executed in favour of the claimant obstructor Mrs. Jeyanthi, is void as the said sale was made during the pendency of the civil suit in O.S.No.234 of 1998, after the attachment of the said property. It was the attached property which the claimant obstructor 5/59 https://www.mhc.tn.gov.in/judis ( Uploaded on: 06/06/2025 04:21:42 pm ) C.M.S.A.(MD)No.40 of 2015 had purchased. He also reiterated that, Section 64 of the Code of Civil Procedure, 1908, barred private alienation of the property after attachment and in view of the same, the said sale itself is void and the claimant obstructor cannot derive any title under the aforesaid sale deed executed pending attachment in the civil suit.
6.1. The other limb of argument relied upon by the learned senior counsel to claim that the application in E.A.No.168 of 2012 in E.P.No. 50 of 2000 is not maintainable is that, the said application is barred by limitation. Article 127 of the Limitation Act, 1963, makes it clear that the period of limitation for filing an application for setting aside a sale is 60 days from the date of Court auction. In the instant case, an auction was effected on 17.06.2010, however, the application to set aside the aforesaid sale, was filed by the claimant obstructor in E.A.No.168 of 2012 on 28.09.2011, precisely after 13 months from the date of Court auction. On such grounds, the learned senior counsel claimed that the application made by the claimant obstructor is bad and is not sustainable in law.
6.2. Further, the learned senior counsel categorically submitted that, the claimant obstructor cannot claim her to be a purchaser under 6/59 https://www.mhc.tn.gov.in/judis ( Uploaded on: 06/06/2025 04:21:42 pm ) C.M.S.A.(MD)No.40 of 2015 Order 21 Rule 90 of Code of Civil Procedure, 1908, for the sole reason that the sale deed in her favour is void ab initio in terms of Section 64 of Code of Civil Procedure, 1908. That apart, the learned senior counsel insisted that under Order 21 Rule 90(3) of Code of Civil Procedure, 1908, no application to set aside a sale under Rule 90 shall be entertained, since the ground could have taken well before the date on which the sale was proclaimed by the claimant obstructor. Even in this case, the claimant obstructor could have filed an application well before the proclamation of sale, i.e., before 18.08.2010.
7.The learned senior counsel further submitted that, the affidavit and the petition filed by the plaintiff bank for attachment has been marked as Exhibit P-6. The claim of the obstructor that the survey numbers in the description of property has been corrected, which would go to the root of the matter, may not be correct for the reason that there is no dispute as to the identification of the property that the same is none other than the “Saranya lodge”. Had the claimant obstructor had any objection as to the corrections made there in the description of property in the aforesaid petition for attachment before judgment, she had umpteen opportunities from 20.10.1998 till 20.04.1999, that is, from the date of filing of the I.A.No.384 of 1998 till the date on which 7/59 https://www.mhc.tn.gov.in/judis ( Uploaded on: 06/06/2025 04:21:42 pm ) C.M.S.A.(MD)No.40 of 2015 the same was allowed by setting aside the respondent, that is, the judgment debtor, ex-parte, for not complying with the conditional order.
8.Further, the learned senior counsel relied upon the report of the Amin dated 25.06.1999 marked as Exhibit P-7, in which the Amin had reported the fact that the said schedule of property as described in the petition for attachment in I.A.No.234 of 1998 was also duly attached. The same has also been duly acknowledged by the Nazir section, by his letter to the Sub-Registrar, Nagercoil. The learned senior counsel further emphatically submitted that the affidavit filed by the obstruction petitioner along with the petition to set aside the sale under Order 21 Rule 90 of the Code of Civil Procedure, 1908, had no pleading as to the claim of the obstructor that the property attached is situated in T.S.Nos. Q7 / 72 and Q7 / 75 and not in R.S.Nos.Q7 / 76 and Q7/78. The learned senior counsel also insisted that no finding as to who actually made the correction in the description of property in the attachment petition.
9.The learned senior counsel relying upon Para 4 of the counter affidavit filed by the auction purchaser in E.A.No. 168 of 2012 pointed 8/59 https://www.mhc.tn.gov.in/judis ( Uploaded on: 06/06/2025 04:21:42 pm ) C.M.S.A.(MD)No.40 of 2015 out that the obstruction petitioner's petition filed under Order 21, Rule 90 of Code of Civil Procedure, 1908, should be rejected at the threshold as the same has been filed claiming under a title created by the judgment debtor subsequent to the attachment of the property in question. The learned senior counsel also explained that the price of the property was not wantonly brought down but only after proclaiming sale 10 times, which was adjourned from time to time due to the reason that, none turned up for purchasing the property and only on the 10 th time at a reduced price for Rs.7,00,000/- (Rupees Seven Lakhs only), the sale was proclaimed in favour of the auction purchaser who is the appellant herein.
10.The learned senior counsel also pointed out that nowhere in her chief examination or cross examination, the obstruction petitioner had stated that the property attached is different from that of her property. And in fact the boundaries which she had deposed in her cross examination, properly tallies with the boundaries set forth by the decree holder in the attachment petition. The learned senior counsel concluded her arguments by attacking the application made by the claimant in E.A. No.168 of 2011 under Order 21 Rule 90 of Code of Civil Procedure,1908, seeking to set aside the sale in Court auction held on 9/59 https://www.mhc.tn.gov.in/judis ( Uploaded on: 06/06/2025 04:21:42 pm ) C.M.S.A.(MD)No.40 of 2015 17.06.2010 mainly on three grounds,
(i) The application is barred by limitation.
(ii) The private alienation made by the judgment debtor in favour of one Nepal Raj and thereafter the alienation made by Nepal Raj in favour of the obstruction petitioner Jayanthi is void, since the said sale is subsequent to the attachment, through which the obstructor cannot derive any title under the said sale deed.
(iii) There is no specific pleading as to the fraud committed by the auction purchaser or the bank in the petition filed by the obstructor under Order 21 Rule 90 of the Code of Civil Procedure, 1908.
11.Per contra, the learned senior counsel, Mr. Meenakshi Sundaram, appearing for the obstruction petitioner submitted that, the auction purchaser to claim the benefit of the order of attachment should duly prove that the order of attachment is made with respect to a correctly identifiable property. The learned senior counsel categorically contended that, the property was not correctly identified in terms of description as per lie, location, survey number, boundary and extent which is the essential criteria for identifying the property, the order of attachment made without proper identification of property itself 10/59 https://www.mhc.tn.gov.in/judis ( Uploaded on: 06/06/2025 04:21:42 pm ) C.M.S.A.(MD)No.40 of 2015 would be unenforceable.
12.He further submitted that the lapse in identification of the property has culminated in fraud and the same is an effort to put the cart before the horse. The corrections made in the description of property in the attachment petition filed by the execution petitioner bank has been factually identified and traced out by both the Trial court as well as the Appellate Court. But the question as to when, how and why such correction made remains unanswered and the same has to be traced out, for which, the learned senior counsel for the obstruction petitioner traced the title of the obstruction petitioner step by step.
13.The learned senior counsel for the obstruction petitioner submitted that on 25.11.1999, a sale deed was executed by the judgment debtor Nagarajan in favor of one Thiru.Nepal Raj with respect to 5.550 cents land equivalent to 2418 square feet, comprised in R.S. No.Q7/78 of Vadiveeswaram village, Thalavai street, Nagercoil municipality, ward No.8, Agatheeswaram Taluk, Kanyakumari district, correlating to the old survey No.1679 / 4037 D, in which “Saranya lodge” and its building bearing NMC No.8/11-42 is situated and the same is a RCC building with 3 floors with a ground floor of 190 square meters, first floor with an area of 190 square meters, second floor with 11/59 https://www.mhc.tn.gov.in/judis ( Uploaded on: 06/06/2025 04:21:42 pm ) C.M.S.A.(MD)No.40 of 2015 an area of 190 square meters and third floor with an area of 190 square meters, comprising a total area of 760 square meters with electricity connection. The property was 10 years old as on the date of execution of the aforesaid sale deed. The total value of the property was Rs. 16,00,000/- (Rupees Sixteen Lakhs only) as on the date of execution of the sale deed. Subsequently, the said property was sold by the said Thiru.Nepal Raj by execution of a sale deed dated 02.01.2008, in favour of N.Jayanthi, who is the obstruction petitioner herein.
14.The boundaries of the said property in both the deeds are stated as follows: North Talavai street, East T.S. No.Q7/79, comprising a Government lane, South R.S.No.Q8/84, West T.S.No.Q7/77. The learned senior counsel emphatically submitted that, the property which was sold by the judgment debtor, in favour of Nepal Raj, who in turn sold the same to the obstruction petitioner, that is, Jayanthi, is not the same which was attached by the bank and later purchased by the auction purchaser. From 02.01.2008, that is, from the date of purchase, the obstruction petitioner Jayanthi had been in possession and title over the said property. Mutation has also been effected in her favour with respect to the said “Saranya lodge”.
15.In the meanwhile, in the E.P. filed by the Canara Bank for sale 12/59 https://www.mhc.tn.gov.in/judis ( Uploaded on: 06/06/2025 04:21:42 pm ) C.M.S.A.(MD)No.40 of 2015 in E.P.No.50 of 2000, the obstruction petitioner was obviously not a party. On 18.08.2010, the sale was confirmed in favour of the auction purchaser Thiru.Ashokamithran. Thereafter, the sale was effected on 21.01.2011 by issuance of sale certificate in favour of the auction purchaser. Later, E.A.No.269 of 2011 was filed by the auction purchaser for delivery of property. Pursuant to the same on 23.09.2011, the auction purchaser along with the Amin visited “Saranya lodge” and only on the said date, the obstruction petitioner, namely, Tmt.Jayanthi, came to know the pendency of all the litigations, explained supra. Immediately on 28.09.2011, the obstruction petitioner filed E.A.No.168 of 2011 under Order 21, Rule 90 of the Code of Civil Procedure, 1908. Pointing out that the order of interim attachment was made for a debt of about Rs.2,00,000/- (Rupees Two Lakhs only) in terms of the approximate value of debt scheduled in the schedule of property of the attachment petition, the learned senior counsel made a point that a property of value Rs.13,07,663/- (Rupees Thirteen Lakhs Seven Thousand Six Hundred and Sixty Three only) as on 25.11.1999 came to be attached.
16.Precisely, the date 25.11.1999 was the date of sale deed when the judgment debtor executed a sale deed with respect to the property scheduled along with “Saranya lodge” in the aforesaid sale deed in 13/59 https://www.mhc.tn.gov.in/judis ( Uploaded on: 06/06/2025 04:21:42 pm ) C.M.S.A.(MD)No.40 of 2015 favour of one Nepal Raj. On 02.01.2008, Nepal Raj executed another sale deed in favour of the obstruction petitioner Jayanthi, which is marked as Exhibit P-2, and the schedule of property would reveal that the total market value of the said property was Rs.80,00,000/- (Rupees Eighty Lakhs only). That is, precisely between the years 1999 to 2008, the market value had escalated to a tune of at least Rs.5,00,000/- (Rupees Five Lakhs only). Pointing out the schedule of property cited in the attachment petition filed by the bank in which it is stated that the said Saranya lodge is situated in an area of 3/4 cents land comprised in R.S.No.Q7/76 and 3 cents land in R.S.No.Q7/78, the learned senior counsel made it clear that the said survey numbers have been corrected and the same is initialed by the advocate for the bank from T.S.No.Q7/72 to R.S.No.Q7/76 and T.S.No.Q7/75 to R.S.No.Q7/78. The said correction is carried out not only in the survey number and area, but also in the description of property.
17.Relying upon the cross-examination of the obstruction petitioner Jayanthi, made on 19.11.2012, the learned senior counsel pointed out that, the obstruction petitioner deposed that the identity of the property could be made only by the boundaries cited and there is no vacant site within the four boundaries cited in the schedule of property. He also pointed out that, the entire building of Saranya lodge is situated 14/59 https://www.mhc.tn.gov.in/judis ( Uploaded on: 06/06/2025 04:21:42 pm ) C.M.S.A.(MD)No.40 of 2015 in the complete area of 5.550 cents land without leaving any vacant space. Thus, the learned senior counsel pointed out that, as per lie and as per the document, that is, the sale deed in favour of the obstruction petitioner, and in terms of a cross-examination, the superstructure of the lodge is completely situated in the entire 5.550 cents and thus, the extent as cited in the attachment petition is incorrect.
18.He also pointed out that, the survey number is also incorrect, because two survey numbers are cited in the schedule of property and also the boundaries of the attached property is also incorrect, since the eastern boundary is described as “Kandiban Lodge” instead of “Government Lane” (muR KLf;F)/ Further, the learned senior counsel submitted that for an amount of Rs,1,52,682.89/- in terms of the attachment affidavit filed along with the attachment petition, (during 1999) a property of value of at least Rs.16,00,000/- (Rupees Sixteen Lakhs only), was brought for attachment before the Court.
19.Further, the learned senior counsel submitted that, bringing a property with wrong description, wrong survey number, wrong area, and wrong valuation, for attachment before Court, would amount to fraud and the same would vitiate the entire proceedings by which the subject property was brought for sale by the Court. Pointing out the 15/59 https://www.mhc.tn.gov.in/judis ( Uploaded on: 06/06/2025 04:21:42 pm ) C.M.S.A.(MD)No.40 of 2015 corrections made out in the schedule of property in the attachment petition as if the same had been corrected by the advocate of the bank since the same has got the initial of the lawyer, the learned senior counsel proceeded to point out the corrections made in the report of Amin marked as exhibit P7 in which schedule of property, the survey number is carefully corrected from T.S.No.Q7/72 to R.S.No.Q7/76 and T.S.No.Q7/75 is corrected as R.S.No.Q7/78 and the date of the said report is 25.06.1999.
20.The learned senior counsel pointed out that, even as per the bailiff's valuation, the property value which was claimed in the attachment petition was Rs.2,00,000/- (Rupees Two Lakhs only) and the valuation as per the senior bailiff was Rs.10,00,000/- (Rupees Ten Lakhs only) as on 25.06.1999. Further, the learned senior counsel pointed out that even in the communication sent from the Nazir section of the Subordinate Judge's Court, Nagercoil, to the Sub-Registry in Nagercoil, the survey numbers mentioned has been carefully corrected from T.S.No.Q7/72 to R.S.No.Q7/76 and T.S.No.Q7/75 to R.S.No.Q7/78 of Vadiveeswaram village. The learned senior counsel further pointed out that, the affidavit filed by the bank manager in the E.P. petition in E.P.No.50 of 2000 which is marked as exhibit P-9, it is falsely affirmed that the detailed village, survey number and area of the 16/59 https://www.mhc.tn.gov.in/judis ( Uploaded on: 06/06/2025 04:21:42 pm ) C.M.S.A.(MD)No.40 of 2015 property mentioned in the E.P. schedule of property is correct.
21.In a turn and twist of events, the learned senior counsel interestingly brought to the attention of this Court that, the third party affidavit dated 20.10.1998 which was filed along with the suit for recovery of money in support of the need for attachment before judgment along with the I.A. for attachment before judgment, that is, I.A. in I.A.No. 384 of 1998, in Para No. 2 of the said affidavit, the affirmation by one Neelagandapillai, S/o.Thanumalai Perumal, makes it clear that, the subject property is consisting an area of 3/4 cents which is comprised in T.S.Nos.Q7/72 and Q7/75 of Vadiveeswaram village.
22.The learned senior counsel made it clear that, the person who effected corrections in all the documents inadvertently failed to effect the same correction in this third party affidavit and this would reveal the way of fraud which was played upon the entire process before the Execution Court. In the next turning point, the learned senior counsel drew my attention to the Encumbrance Certificate marked as exhibit P-11 which was availed by the judgment debtor with respect to the survey Nos.Q7/72 and Q7/75 of Vadiveeswaram village, dated 12.10.2011, before the date of sale proclamation in favour of the auction purchaser. The entries number 1, 2, and 3 of the aforesaid 17/59 https://www.mhc.tn.gov.in/judis ( Uploaded on: 06/06/2025 04:21:42 pm ) C.M.S.A.(MD)No.40 of 2015 encumbrance certificate bearing EC No. 4178 of 2011 in its entry 3 would reveal that the attachment made by the Subordinate Judge's Court, Nagercoil, in a suit laid by the Canara Bank, Kottar branch, as against the defendant Nagarajan has been attached vide document No. 13 of 1999 on 28.06.1999 with respect to the property comprised in T.S.Nos.Q7/72 and Q7/75 of Vadiveeswaram village.
23.The learned senior counsel further pointed out that, had the subject property been in R.S.Nos.Q7/76 and Q7/78, the occasion would not have arisen for the judgment debtor to avail an Encumbrance Certificate with respect to the property in T.S.Nos.Q7/72 and Q7/75 which precisely reflects the attachment made by the Subordinate Judge's Court, Nagercoil, with respect to the property of the judgment debtor situated in T.S.Nos. Q7/72 and Q7/75. The learned senior counsel drew my attention to the attachment schedule filed by the plaintiff bank in I.A.No.384 of 1998 in which a perusal of the description of the property would make it clear that even in that attachment schedule dated 05.04.1999, T.S. No. is given as Q7/72 and Q7/75.
24.The learned senior counsel appearing for the claimant obstructor pointed out the argument of the learned senior counsel 18/59 https://www.mhc.tn.gov.in/judis ( Uploaded on: 06/06/2025 04:21:42 pm ) C.M.S.A.(MD)No.40 of 2015 appearing for the auction purchaser that the property was brought in for proclamation at least for 10 times and thereafter drew my attention to the proclamation schedule Jabida marked as exhibit P-13 dated 09.12.2002 in which the survey number has been given as T.S.NO. Q7/72 and Q7/75 and the area as Q7/72 3/4 cents, Q7/75 3 cents, total 3 3/4 cents. From these documents more particularly exhibit P-13, the attachment schedule filed by the plaintiff bank in I.A.No.384 of 1998 dated 05.04.1999, the Encumbrance Certificate marked as (Exhibit P-11), the third party affidavit of Neela Gandapullai dated 20.10.1998, exhibit P8, that is, the letter of the Nazir section of the Subordinate Judge's Court at Nagercoil, to the Sub Registrar, Nagercoil, and the schedule of property in the attachment petition dated 20.10.1998 would reveal that though correction has been carried out in the schedule of property of the attachment petition dated 20.10.1998, exhibit P-11 would make it clear that the correction could not have been done till 12.10.2011, since the exhibit P-11 encumbrance certificate reflects the survey number as T.S.Nos. Q7/72 and Q7/75.
24.1.Even the attachment schedule filed by the plaintiff bank itself in I.A.No.384 of 1998, in O.S.No.234 of 1998 dated 05.04.1999 would reveal that the said correction would not have been done even on 05.04.1999. Proclamation of schedule Jabida ( Exhibit P-13) would 19/59 https://www.mhc.tn.gov.in/judis ( Uploaded on: 06/06/2025 04:21:42 pm ) C.M.S.A.(MD)No.40 of 2015 reveal that the correction in the attachment petition dated 20.10.1998 would not have been carried out even in 09.12.2002. Hence, it is needless to state the attachment would have obviously been done only after the date of exhibit P-13.
25.The learned senior counsel further drew my attention to the cross examination of the obstruction petitioner Jayanthi dated 08.04.2013 in which the suggestion put forth by the learned counsel for the plaintiff bank itself would bring the cat out of the bag that, it was the petitioner's counsel who had effected the corrections in the schedule of property in I.A.No.384 of 1998 and in all the other documents wherever correction has been effected. Having unfurled the mystery behind the corrections, the learned senior counsel convincingly submitted that the auction purchaser unfortunately had purchased a wrongly descripted property in the execution petition and later not able to identify the said property, the sale was proceeded against another property by playing fraud on the Execution Court by correcting the survey numbers in the schedule of property in the attachment petition and many other relevant documents. These events will categorically prove that the case is a clear case of fraud and material irregularity.
26.Defending the three grounds of attack initiated by the learned 20/59 https://www.mhc.tn.gov.in/judis ( Uploaded on: 06/06/2025 04:21:42 pm ) C.M.S.A.(MD)No.40 of 2015 senior counsel for the auction purchaser that, the application made by the obstructor under Order 21 Rule 90 of C.P.C. 1908., is barred by limitation and that the obstructor has no locus standi to proceed against the auction purchaser and there is no plea of fraud in the pleadings made by the auction purchaser in the E.A. affidavit. The learned senior counsel categorically disbursed the ground of locus by drawing my attention to the document filed along with C.M.P.(MD)No. 8746 of 2017. The learned senior counsel placed before me the settlement deed bearing document No.1443 of 2012 dated 04.04.2012 executed by the auction purchaser, in favour of his brother P. Muruganandam, settling an area of 3/4 cents comprised in R.S. No.Q7/76 and 3 cents land comprised in R.S. No.Q7/78 of Vadiveeswaram village along with “Saranya Lodge” building bearing NMC.No.166.
27.The learned senior counsel also placed before me the paper publication made by the advocate for the bank requiring the 3rd respondent/judgment debtor Nagarajan that, E.A.No.6 of 2008 has been filed to reduce the upset price of the subject property in E.P. from Rs.9,00,000/- (Rupees Nine Lakhs only) to Rs.8,00,000/- (Rupees Eight Lakhs only) and the hearing of the said E.A. has been posted on 28.01.2008 and in case of default in appearance on the said date the said application would be set ex parte. And the same is bereft of the 21/59 https://www.mhc.tn.gov.in/judis ( Uploaded on: 06/06/2025 04:21:42 pm ) C.M.S.A.(MD)No.40 of 2015 details and description of the subject property. The learned senior counsel further submitted that, since the obstruction petitioner was a third party, she was able to avail a certified copy of the said settlement deed only by 16.08.2017 and a copy of the said paper publication subsequent to the order passed by the 1st Appellate Court in the C.M.A. proceedings.
28.The learned senior counsel appearing for the obstruction petitioner submitted that, the same can be admitted in such extraordinary circumstances in the second appeal. Having executed a settlement deed in favour of his brother as early as in 2012, now the learned senior counsel contended that, the auction purchaser has no locus standi to prefer this second appeal at all, in fact, his brother ought to have filed the same. As far as the ground taken by the learned senior counsel for the auction purchaser that, the plea of fraud has not been made by the obstruction petitioner, the learned senior counsel pointed out para 7 and 12 of the affidavit filed along with the obstruction petition where the plea of the fraud has been taken. As far as the point of limitation is concerned since the fraud vitiates everything, the learned senior counsel made it clear that, the question of limitation cannot be an impediment for the obstruction petitioner to succeed. 22/59 https://www.mhc.tn.gov.in/judis ( Uploaded on: 06/06/2025 04:21:42 pm ) C.M.S.A.(MD)No.40 of 2015
29.The learned senior counsel for the auction purchaser, that is, the appellant herein, relied upon the following judgments:
(i) Saheb Khan vs. Mohammed Yusufuddin and others-1 The manner of pleading fraud or material irregularity must be in such a way that the fraud or material irregularity must be specifically made with specific and sufficient particulars and bald allegations are not sufficient to prove the same.
(ii) Balusamy Chettiar and others vs. Abdul Razack and others2. The specific admission made by the obstruction petitioner in her cross-examination as to the four boundaries of Saranya lodge which tallies with the four boundaries cited in the Execution Petition itself would suffice for the Court to come to a conclusion that the said admission under Section 17 of the Indian Evidence Act, 1872, would stare at the decision of the First Appellate Court who came to a conclusion that, the disputed property as scheduled in the attachment petition do not cover the actual lie of the Saranya Lodge.
(iii) Samayana Thevar vs. Abdul Razack and another3 - the four boundaries will prevail over survey number and extend.
1 (2006) 4 SCC 476 2 2011 (3) MWN (Civil) 278 3 2011 (1) MWN (Civil) 85 23/59 https://www.mhc.tn.gov.in/judis ( Uploaded on: 06/06/2025 04:21:42 pm ) C.M.S.A.(MD)No.40 of 2015
(iv) Saravana Theater and 3 others vs. T.Ramalingam and 7 others4: when the identity of the property as Saravana Theater is well known in that case, the survey number and extent of the property would become immaterial and similarly in this case, when the identity of Saranya lodge is well known, the discrepancies in survey number and extent would not affect the case of the auction purchaser.
(v) Y.Subba Rao (died) and others vs Azizunnisa Begum (died) and others5 - it is a settled proposition of law that, if a property is described by distinct boundaries which can be identified, any mistake in survey number of the land has to be ignored. Even if the property is known by a definite name as happens when a particular land has a local name or a particular building has a particular name, the identity of the property can be established.
(vi) Kadiyala Rama Rao vs. G.Kuttala Kahna Rao (dead) and others6. No application for setting aside a sale shall be entertained upon a ground which the applicant could have taken on or before the date of drawing up of the proclamation of sale on the ground of material irregularity and fraud in publishing or conducting the sale. 4 2008 (6) CTC 862 51983 SCC OnLine AP 73 6 (2000) 3, SCC 87 24/59 https://www.mhc.tn.gov.in/judis ( Uploaded on: 06/06/2025 04:21:42 pm ) C.M.S.A.(MD)No.40 of 2015
(vii) Mohideen Pitchai vs. Salim7. Article 127 of the Limitation Act, 1963, makes it clear that, the period of limitation to set aside the sale under Order 21 Rule 90 of C.P.C. 1908., in 60 days and since the obstruction petitioner did not choose to file the application under Order 21 Rule 90 of C.P.C. 1908., within 60 days from the date of sale, the application is barred by limitation.
(viii) Nancy John Lyndon vs. Prabhati Lal Chowdhury and others8: Property sold by a judgment debtor privately to a third party and by the third party to another person during the subsistence of attachment is void.
(ix) K. L. R. Athappa Chettiar vs. G. R. Ramasethu and others9 - Petition filed after expiry of 60 days of sale is barred by limitation.
30.The judgments relied upon by the learned senior counsel 7 (2012) 3 LW 596 8 (1987) 4 SCC 78 9 1994, 1 LW, 331 25/59 https://www.mhc.tn.gov.in/judis ( Uploaded on: 06/06/2025 04:21:42 pm ) C.M.S.A.(MD)No.40 of 2015 appearing for the obstruction petitioner, that is, 1st the respondent herein is as follows:
(i) Sai Enterprises vs. Bhimreddy Laxmaiah and another10 -
in all execution proceedings, the Court has to first decide whether it is necessary to bring the entire property to sale or such portion thereof may seem necessary to satisfy the decree. Even if a separate portion of the property could be sold without violating any provision of law, only such portion of property should be sold. This is not a discretion but an obligation imposed on the Court and those sale held without examining this aspect and not in confirmity with this mandatory requirement would be illegal and without jurisdiction.
(ii) Sanjay Kumar Singh vs. State of Jharkhand11 - Order 41 Rule 27 of C.P.C. 1908., enables the Appellate Court to take additional evidence in exceptional circumstances. Where the additional evidence sought to be adduced removes the cloud of doubt over the case and the evidence has a direct and important bearing on the main issue in the suit and interest of justice. The same may be allowed to be permitted on record and such application may be allowed. But it depends upon 10 2007 (2) CTC 826 11 2022 (5) CTC 364 26/59 https://www.mhc.tn.gov.in/judis ( Uploaded on: 06/06/2025 04:21:42 pm ) C.M.S.A.(MD)No.40 of 2015 whether or not the Appellate Court requires the evidence sought to be adduced to enable it to pronounce judgment or for any other substantial cause.
(iii) Raghavan (Died) and others vs. Sivakumar and others12:
In a case where a fraud or material irregularity in publishing or conducting a Court auction sale is brought to the notice of the Court, whether the applicant has locus standi or not, the Court has to exercise its inherent power to see that the benefits do not accrue to the decree holder or the auction purchaser as the case may be.
(iv) Indian Bank vs. Satyam Fibers (India) Private Limited13:
Since the fraud affects the solemnity, regularity and orderliness of the proceedings of the Court and also amounts to an abuse of the process of the Court, the Courts have been held to have inherent power to set aside an order obtained by fraud practiced upon that Court. Similarly, where the Court is misled by a party or the Court itself commits a mistake which prejudices party, the Court has the inherent power to recall its order.
12(2023) 6 MLJ 73 13 1996 5 SCC 550 27/59 https://www.mhc.tn.gov.in/judis ( Uploaded on: 06/06/2025 04:21:42 pm ) C.M.S.A.(MD)No.40 of 2015
(v) Upasana Finance Limited, represented by its senior manager, Finance and Secretary, Mr. R.Krishnan vs. Mrs.Hotel Saranya Private Limited, represented by its managing director, Mr.S.Nagarajan and others14: In a significant twist, the learned senior counsel drew my attention to a judgment which has dealt with the same property, that is, the “Hotel Saranya”, which is a subject matter of the lis in hand, in which the description of property is as follows: Saranya lodge in Nagercoil municipality in R.S. No. Q7-78, comprising an extent of 10.7/16 cents, along with electricity and water connection, correlated to old survey No.1679/4037A, comprising NMC door No. 17/2/42, bounded in the east by property belonging to Ramakrishna Acharya and Subramanya Pillai, west by the property belonging to Pichandi and Leelavati, south by the property belonging to Nagarajan and Komathiammal and north by the property belonging to Nagarajan.
31.However, it is the learned senior counsel who was keen in pointing out that, the extent as well as the boundaries are incorrect in the said case also. Thus, the learned senior counsel rightly pointed out that, even the applicants who brought the property for sale in the aforesaid case were not clear as to the description of the property and there had been a cloud as to the identity of the survey numbers as well 14 C.S.No.1137 of 2008, dated 10.10.2018 28/59 https://www.mhc.tn.gov.in/judis ( Uploaded on: 06/06/2025 04:21:42 pm ) C.M.S.A.(MD)No.40 of 2015 as the extent of the said Saranya lodge. The chronology of events which would unfurl the sequence of the various events in this case is as follows:
Date Events
20.10.1998 The 2nd respondent bank filed a suit for recovery of Rs.
1,52,682.89/- from the 3rd respondent herein on the file of Principle sub-ordinate Judges court, Nagercoil, along with a 3rd party affidavit and I.A. No. 384 of 1998 for seeking attachment before judgment 01.04.1999 Attachment before judgment made in I.A. No. 384 of 1998 with respect to the property consisting an area of ¾ cents land comprised in T.S. No. Q7/72 and 3 cents land comprised in T.S. No. Q7/75 of Vadiveeswaram village along with the Lodging house bearing the name “Hotel Saranya” 25.06.1999 Property attached by Amin executing the attachment order (Ex. P7) 30.06.1999 Ex-parte decree was passed in O.S. No. 234 of 1998 for Rs. 1,52,682.89/- with interest at the rate of 19.85% and the attachment made in I.A. No. 384 of 1998 was made absolute 25.11.1999 Sale deed bearing document no. 25 of 1999 dated 25.11.1999 was executed by the 3rd respondent judgment debtor in favour of Thiru. Nepalraj with respect to 5.50 cents land comprised in T.S. No. Q7/78 along with building bearing NMC. 8/11-42, namely, Saranya Lodge 2000 Execution Petition in E.P. No. 50 of 2000 filed by the 2nd respondent bank for the sale of property attached 07.12.2001 An upset price of Rs. 10,00,000/- based on Ex.P7 was fixed by the execution court 08.02.2002 Sale was not conducted for want of Bidders 29/59 https://www.mhc.tn.gov.in/judis ( Uploaded on: 06/06/2025 04:21:42 pm ) C.M.S.A.(MD)No.40 of 2015 12.03.2002 E.A. No. 170 of 2002 in E.P.No. 50 of 2000 was filed by the 2nd respondent bank to reduce the upset price. 16.03.2002 Steps filed to reduce the upset price with paper publication in E.A. No. 170 of 2002 20.09.2002 E.A. No. 170 of 2002 allowed by reducing the upset price to Rs. 6,00,00/- along with proclamation for sale on 21.11.2022 29.01.2003 Property not sold for want of Bidders 05.12.2003 E.A. No. 543 of 2003 was filed by the 2nd respondent bank to further reduce the upset price 10.06.2004 Without taking steps to inform the same to the 3rd respondent judgment debtor through paper publication, E.A. No. 543 of 2003 was allowed to proclaim and sell the property on 22.07.2004 23.07.2004 Property not sold for want of Bidders 28.07.2004 E.A. No. 401 of 2004 was filed by the 2nd respondent bank to further reduce the upset price 26.08.2004 Steps in E.A. No. 401 of 2004 taken by the 2nd respondent bank was filed 06.01.2005 E.A. No. 401 of 2004 was allowed by reducing the upset price to Rs. 5,00,000/- along with proclamation for sale on 17.03.2005 18.03.2005 Property not sold for want of Bidders 05.04.2005 E.A. No. 158 of 2005 was filed by the 2nd respondent bank to further reduce the upset price 23.02.2007 E.A. No. 158 of 2005 was dismissed 02.01.2008 E.A. No. 6 of 2008 was filed by the 2nd respondent bank to further reduce the upset price from Rs. 9, 00,000/- to Rs. 5,00,000/-
02.01.2008 Sale deed bearing document no. 13 of 2008 dated 02.01.2008 was executed by Thiru. Nepalraj with respect to 5.50 cents land comprised in T.S. No. Q7/78 along with building bearing NMC. 8/11-42, namely, Saranya Lodge, in favour of the 1st respondent 30/59 https://www.mhc.tn.gov.in/judis ( Uploaded on: 06/06/2025 04:21:42 pm ) C.M.S.A.(MD)No.40 of 2015 28.04.2008 Steps in E.A. No. 6 of 2008 taken by the 2nd respondent bank was filed and the said E.A. was allowed by reducing the upset price from Rs. 9,00,000/- to Rs. 5,00,000/-
27.06.2008 Sale warrant returned as “No Bidders” 30.07.2008 E.A. No. 420 of 2008 was filed by the 2nd respondent bank to further reduce the upset price 13.02.2009 E.A. No. 420 of 2008 was allowed by reducing the upset price from 8,50,000/- to Rs. 8,00,00/- along with proclamation for sale on 09.04.2009 15.04.2009 Sale warrant returned as “No Bidders” 15.06.2009 E.A. No. 395 of 2009 was filed by the 2nd respondent bank to further reduce the upset price 26.02.2010 Sale not held on want of Bidders 25.03.2010 E.A. No. 230 of 2010 was filed by the 2nd respondent bank to further reduce the upset price to Rs. 7,00,000/- 29.04.2010 E.A. No. 230 of 2010 was allowed by reducing the upset price to Rs. 7,00,000/- along with proclamation for sale on 17.06.2010 23.06.2010 Sale conducted. Property was sold to the appellant for an amount of Rs. 7,05,000/- - ¼ the sale amount Rs.
1,76,250/- deposited at Principle Subordinate Judges Court, Nagercoil 18.08.2010 Memo filed stating that balance sale amount that is 3/4th for a sum of Rs. 5,28,000/- deposited on 29.06.2010 18.08.2010 Sale confirmed in favour of the appellant 23.09.2011 The appellant/auction purchaser along with Court Amin visited “Saranya Lodge” to effect delivery and the same was obstructed by the 1st respondent 28.09.2011 E.A. No. 168 of 2012 was filed by the 1st respondent under Order 21 Rule 90 to 106 and Section 151 of Code of Civil Procedure,1908, to set aside the same.
04.04.2012 Appellant executed a settlement deed in favour of Thiru.
P. Muruganandam with respect to the building namely, Saranya Lodge, situated in ¾ cents in T.S. No. Q7/76 and 3 cents land comprised in T.S.No. Q7/78 31/59 https://www.mhc.tn.gov.in/judis ( Uploaded on: 06/06/2025 04:21:42 pm ) C.M.S.A.(MD)No.40 of 2015 21.08.2013 E.A. No. 168 of 2012 was dismissed by the Execution Court 2013 Civil Miscellaneous Appeal in C.M.A. No. 17 of 2013 was filed on the file of the District Sessions Court, Nagercoil, Kanyakumari District, against the decreetal order in E.A. No. 168 of 2012.
04.09.2015 Civil Miscellaneous Appeal in C.M.A. No. 17 of 2013 was filed on the file of the District Sessions Court, Nagercoil, Kanyakumari District, was allowed.
15.11.2015 This C.M.S.A is filed by the appellant challenging the judgment and decree in C.M.A. No. 17 of 2013 Analysis:
32.The onslaught of grounds put forth by the learned senior counsel for the auction purchaser as against the obstruction petitioner/respondent herein are threefold: (i) limitation, (ii) locus standi, and (iii) no plea of fraud, in the petition filed under Order 21 Rule 90 of Code of Civil Procedure, 1908.
33.The counter-attack bombarding the attack of the learned senior counsel for the appellant by the learnerd senior counsel for the respondent is that, the question of limitation would become immaterial when fraud has vitiated the entire manner in which the subject property has been brought for sale by illegally correcting the survey numbers in the schedule of property mentioned in the petition for attachment filed 32/59 https://www.mhc.tn.gov.in/judis ( Uploaded on: 06/06/2025 04:21:42 pm ) C.M.S.A.(MD)No.40 of 2015 by the petitioner bank. It is not the 1st respondent/obstruction petitioner who has no locus to file her petition under Order 21 Rule 90 of Code of Civil Procedure, 1908, but it is the auction purchaser who has no locus to file this C.M.S.A. after having executed a settlement deed with respect to the subject property in favour of his brother during the year 2012. The contention of the appellant's counsel that the plea of fraud has not been duly pleaded in the petition for setting aside the sale is incorrect since the same has been duly pleaded in para nos. 7, 8, 9, 11, and 12, which would make it clear that, fraud has been played before the execution Court, as a result of which a property worth more than 3 crores of rupees has been brought to sale in auction for a meagre Rs.7,05,000/- (Rupees Seven Lakhs and Five Thousand only) causing irreparable loss and injury to the obstruction petitioner.
34.Orders of the Execution Court and First Appellate Court:
The learned execution Court in E.A.No.168 of 2012 in E.P.No. 50 of 2000 in O.S.No.234 of 1998, in Para 8 had made an elaborate fact finding exercise and came to a conclusion that the survey numbers in the schedule of property of the attachment petition filed by the plaintiff bank was corrected only during the pendency of the execution proceedings. As to the question whether by way of the said overwriting or correction, the property attached was changed or some other 33/59 https://www.mhc.tn.gov.in/judis ( Uploaded on: 06/06/2025 04:21:42 pm ) C.M.S.A.(MD)No.40 of 2015 property was sold, the learned Execution Court proceeded to conclude that only if the property is changed it can be said that fraud has been committed by the bank. If the property is not changed, the same cannot be considered as a fraud or material irregularity in bringing the property for sale.
35.Pointing out that PW-1, that is, the obstruction petitioner, has admitted the four boundaries in the course of cross examination which would tally to the boundaries mentioned in the attachment before judgment application, the learned Execution Court observed that, it is the admitted case of the petitioner that the re-survey number alone has been corrected or overwritten. Even though the said overwriting has been clearly established by the petitioner, to the extent four boundaries and other descriptions are not changed and admittedly the entire property is covered with the building, namely, “Saranya lodge”, and PW-1 admitted in her cross examination that, there is no vacant space within the said four boundaries. In such circumstances, the learned Execution Court concluded that, the obstruction petitioner has failed to establish that the property attached and the property sold are different.
36.Pointing out the settled proposition of law that, when there is a dispute with regard to survey number, the property can be identified by 34/59 https://www.mhc.tn.gov.in/judis ( Uploaded on: 06/06/2025 04:21:42 pm ) C.M.S.A.(MD)No.40 of 2015 boundaries, it was concluded that, the bank and the auction purchaser have established that, the boundaries extent and other descriptions in the property attached and the property sold are one and the same, and since the judgment debtor failed to question the execution re-survey number and value of property, no evidence has been brought for before the Court to prove that there had been an irregularity or fraud in the Court auction sale and that the application of the obstruction petitioner is barred by limitation.
37.The learned Execution Court concluded that, even assuming that there had been an overwriting in re-survey number and property sold for meagre value, it should have been questioned by the judgment debtor by filing an application to set aside the sale under Order 21 Rule 90 of Code of Civil Procedure, 1908, within 90 days from the date of sale, and that the obstruction petitioner/transferee pendente lite has no locus standi to question under Order 21 Rule 90 to 106 of Code of Civil Procedure, 1908, who is not a bonafide purchaser.
38.In the Civil Miscellaneous Appeal, the learned District Judge Kanyakumari District at Nagercoil, when a plea of fraud was brought to the notice of the learaned District Judge, rightly, the learned Court had called for the attachment register, auction register, and register for sale 35/59 https://www.mhc.tn.gov.in/judis ( Uploaded on: 06/06/2025 04:21:42 pm ) C.M.S.A.(MD)No.40 of 2015 certificate, concerning the property in dispute. It was found from the immovable properties attachment register maintained at Nazir section that the survey number of the properties attached were given as T.S. Nos. Q7/72 and Q7/75, Q7/72 measures 3/4 cent and Q7/75 measures 3 cents. Similarly, the auction register which was called for also made it clear that, the property sold in Court auction sale on 17.06.2010 are the properties comprised in T.S. Nos. Q7/72 and Q7/75 of Vadiveeswaram village, Agasteeswaram taluk, Nagercoil Sub District, Kanyakumari District, T.S. No. Q7/72 measures 3/4 cents and T.S. No. Q7/75 measures 3 cents.
39.Thus, the learned District Judge made it clear that, from those records especially the auction register, the T.S. No. No.Q7/72 was corrected as R.S.No.Q7/76 and T.S. No. Q7/75 was corrected as R.S.No.Q7/78 after the sale of the properties in the Court auction sale. From the said records, the learned Court proceeded to confirm that the said exercise is a clear fraud committed on the proceedings of the Court by illegal and unauthorized correction of survey numbers. In the presence of unauthorized and illegal correction of survey numbers, the learned Judge proceeded to conclude that, the plea of the auction purchaser that boundary would prevail over the extent and survey number would not be applicable for the facts and circumstances of this 36/59 https://www.mhc.tn.gov.in/judis ( Uploaded on: 06/06/2025 04:21:42 pm ) C.M.S.A.(MD)No.40 of 2015 case. Observing that the dispute involved is with respect to whether there is an unauthorized correction of survey numbers and whether the properties were sold for a low price, it was found that there is an unauthorized correction of survey numbers of properties concerned in this case and the properties were sold for a very low price of Rs.
7,50,000/- (Rupees Seven Lakhs and Five Thousand only).
40.Further the learned Judge proceeded to observe the question upon the contention of the auction purchaser and other respondents that the obstruction petitioner is a pendente lite purchaser, considering the fact that, the survey numbers of the properties were corrected after the properties were sold in Court auction sale, the learned Judge concluded that, the obstruction petitioner is entitled to raise the issue of fraud and irregularity in the conduct of sale since the question of fraud can be raised at any time. Since the obstruction petitioner has raised the question of fraud immediately after knowing the fraud, the Court concluded that, the petition is not barred by limitation, since fraud vitiates all judicial acts, ecclessiastical or temporal.
41.Fully relying upon the records and the registers, the learned Judge categorically held that, a fraud has been committed by correcting the survey numbers of the properties in the records after the properties 37/59 https://www.mhc.tn.gov.in/judis ( Uploaded on: 06/06/2025 04:21:42 pm ) C.M.S.A.(MD)No.40 of 2015 were sold in the auction sale. Thus, the First Appellate Court concluded that, the findings of the Trial Court that the property can be identified with the help of the four boundaries and the correction in the survey number will not vitiate the sale proceedings could not be correct and that the fraud unsettles everything and therefore, the sale has to be necessarily set aside on the ground of fraud and irregularity and accordingly the sale was set aside, thereby allowing the Civil Miscellaneous Appeal.
42.I have carefully considered the submissions made on either sides and the available material records.
Discussion:
43.The locus standi of the respondent / obstruction petitioner: Section 64 of the Code of Civil Procedure, 1908, makes it clear that, any private alienation of property after an attachment has been made shall be void as against all claims enforceable under the said attachment. In the instant case, attachment before judgment in I.A.No. 384 of 1998 in O.S.No.234 of 1998 was made on 01.04.1999. The property was attached by the Amin executing the attachment order (which is marked as exhibit P-7) on 25.06.1999. The suit in O.S.No.234 of 1998 was set ex parte and the ex parte decree was made on 38/59 https://www.mhc.tn.gov.in/judis ( Uploaded on: 06/06/2025 04:21:42 pm ) C.M.S.A.(MD)No.40 of 2015 30.06.1999, on which date the attachment made became absolute. However, the application under Order 21 Rule 90 to 106 of the Code of Civil Procedure, 1908, was filed by the respondent only on 28.09.2011, that is, precisely after 13 months from the date of Court auction on 23.06.2010.
44.However, Order 21 Rule 90 of the Code of Civil Procedure, 1908, mandates that, where any immovable property has been sold in execution of a decree any person whose interests are affected by the sale may apply to the Court to set aside the sale on the ground of a material irregularity or fraud in publishing or conducting it, provided that, the Court should be satisfied that the applicant has sustained substantial injury by reason of such irregularity or fraud and no application to set aside a sale under this rule shall be entertained upon which the applicant could have taken on or before the date on which the proclamation of sale was drawn up. In the instant case obviously, the respondent/obstruction petitioner is a person whose interest has been affected by the Court sale in favour of the appellant auction purchaser. The respondent was not a party to the suit in O.S.No.234 of 1998 and Execution Petition in E.P.No.50 of 2000.
45.The suit was one for recovery of money filed by Canara Bank 39/59 https://www.mhc.tn.gov.in/judis ( Uploaded on: 06/06/2025 04:21:42 pm ) C.M.S.A.(MD)No.40 of 2015 Kottar branch as against the defendant one S.Nagarajan for recovery of Rs.1,52,682.89/-. Along with the said suit, a third party affidavit justifying attachment before judgment executed by one Neelagandapillai, S/o.Thanumalai Perumal, and an interim application for attachment before judgment in I.A.No. 384 of 1998 was filed. The said I.A. was allowed on 01.04.1999, following which the property mentioned in the schedule of property of the attachment petition was claimed to be attached by Amin executing the attachment order on 25.06.1999 and the same has been marked as exhibit P-7. The subject property sought to be attached in I.A.No.384 of 1998 consists of a total area of 3 3/4 cents of which 3/4 cent was comprised in R.S.No.Q7/76 and 3 cents was comprised in R.S.No.Q7/78 of Vadiveeswaram village with a building therein, having a large building named “Saranya Lodge” bearing door No.NMC 8/11-42. The said suit in O.S.No.234/1998 was set ex parte for an amount of Rs.1,52,682.89/- with interest at a rate of 19.85 % and attachment made on 01.04.1999 was also made absolute by the judgment by the ex parte decree dated 30.06.1999.
46.Subsequently, the plaintiff bank filed an Execution Petition in E.P.No.50 of 2000 as against the judgment debtor S.Nagarajan. The Execution Petition was one for sale of the property attached. In the interregnum on 25.11.1999, the judgment debtor sold 5.550 cents land 40/59 https://www.mhc.tn.gov.in/judis ( Uploaded on: 06/06/2025 04:21:42 pm ) C.M.S.A.(MD)No.40 of 2015 equivalent to 2418 square feet comprised in R.S.No.Q7/78 of Vadiveeswaram village with the building bearing door No. NMC 8/11/42 “Saranya Lodge” correlating to old survey number 1679/4037 B facing Thalavai street bounded in the east by the Government lane south by resurvey No.Q7/84 west by R.S.No.Q7/77 and north by Thalavai street to one Nepal Raj. The said Thiru.Nepal Raj further sold the said property to the 1st respondent herein, namely, N.Jayanthi, for a sale consideration of Rs.18,00,000/- (Rupees Eighteen Lakhs only) on 02.01.2008. While being so, in the Court auction, the appellant purchased the property by an order dated 23.06.2010 and the sale in favour of Ashokamithran, that is, the auction purchaser/appellant herein was confirmed on 18.08.2010.
47.The Court auction purchaser along with Court Amin visited the property to effect delivery on 23.09.2011. Obstruction was made by the first respondent and the application in E.A.No.168 of 2012 under Order 21 Rule 90 to 106 of C.P.C., 1908, to set aside the sale was filed on 28.09.2011. It is pertinent to mention at this point that, the schedule of property in the petition for attachment before judgment in I.A.No.384 of 1998 is the document around which the entire nuance of this case revolves with. A significant fact finding exercise has been undertaken both by the execution Court as well as 41/59 https://www.mhc.tn.gov.in/judis ( Uploaded on: 06/06/2025 04:21:42 pm ) C.M.S.A.(MD)No.40 of 2015 the learned District Judge's Court by clearly concluding that the survey number in the schedule of property area and description of property in the aforesaid I.A. has been corrected from T.S.No. Q7/72 to R.S.No. Q7/76 and from T.S. No. Q7/75 to R.S.No. Q7/78.
48.The learned First Appellate Court went a step ahead and called for the attachment register, auction register, and register for sale certificate, concerning the property in dispute. The details in all those registers, more particularly, the attachment register maintained at Nazir section revealed that the survey number of property attached were given as T.S.Nos. Q7/72 and Q7/75 in which Q7/72 measures an area of 3/4 cent and Q7/75 measures an area of 3 cents. The survey numbers mentioned in the auction register as well as the register for sale certificate would make it clear that, it is only after the sale of the properties in the Court auction sale, that is, only after 18.08.2010, the said corrections were made in the petition filed by the plaintiff bank for attachment before judgment in O.S.No.234 of 1998.
49.Hence, it could be precisely concluded that, the property which was brought for attachment before judgment by the plaintiff bank in I.A.No. 384 of 1998 was only 3/4 cent land in T.S. No.Q7/72 and 3 cents land in T.S. No.Q7/75 and not the property 42/59 https://www.mhc.tn.gov.in/judis ( Uploaded on: 06/06/2025 04:21:42 pm ) C.M.S.A.(MD)No.40 of 2015 comprised in R.S.No. Q7/78. The property purchased by the first respondent which is marked as exhibit P-2 dated 02.01.2008 bearing document No.13 of 2008 consists an area of 5.550 cents land equivalent to 2418 square feet comprised in R.S. No.Q7/78 of Vadiveeswaram village with the building therein consisting NMC 8/11-42 (12/5 - 42 A) new No.166 which is the “Saranya Lodge” correlated to the old survey No.1679/4037 B bounded by Thalavai street in the north Government lane comprised in R.S.No. Q7/79 in the east R.S.No.Q7/84 in the south and R.S.No.Q7/77 in the west.
50.Now, having elucidated all these facts in issue, it is needless to state that, instead of the property in T.S.Nos. Q7/72 and Q7/75, the property belonging to the first respondent comprised in R.S.No. Q7/78 was brought to attachment. Though the area sought to be attached was 3/4 cents comprised in T.S.No. Q7/72 and 3 cents comprised in T.S.No. Q7/75, the entire 5.550 cents land comprised in R.S.No. Q7/78 was sought to be attached. Exhibit P-11, that is, the encumbrance certificate, availed by the judgment debtor on 12.10.2011 with respect to the property in T.S.Nos. Q7/72 and Q7/75 Vadiveeswaram, would clearly reveal that the property in the aforesaid survey numbers have been attached on 28.06.1999, in a case between the plaintiff Canara Bank, Kottar branch, filed against the judgment debtor Nagarajan. 43/59 https://www.mhc.tn.gov.in/judis ( Uploaded on: 06/06/2025 04:21:42 pm ) C.M.S.A.(MD)No.40 of 2015
51.The claim of the first respondent that her property in R.S.No.Q7/78 on the date of her purchase was free from encumbrance and hence she did not have any occasion to know about the attachment and encumbrance with respect to T.S.Nos. Q7/72 and Q7/75 which was made as early as on 28.06.1999. Hence, it is clear that, the first respondent applicant under Order 21 Rule 90 of Code of Civil Procedure, 1908, never had an occasion to file the same before the date of proclamation of the sale on 17.06.2010. The suit for recovery of money filed by the plaintiff bank in O.S.No.234/1998 was to recover an amount of Rs.1,52,682.89/-. Though the property sought to be attached in I.A.No.384 of 1998 was 3/4 cent land comprised in T.S.No. Q7/72 and 3 cents comprised in T.S.No. Q7/75 along with the lodging house, namely, Saranya Lodge, the said suit was set ex-parte on 30.06.1999, by making the attachment absolute for an amount of Rs.1,52,682.89 with interest at a rate of 19.85%. The attachment petition itself would reveal that, the same has been made for an amount to an approximate value of Rs.2,00,000/- (Rupees Two Lakhs only) in the schedule of property.
52.However, the property which was attached was the entire 5.550 cents land comprised in R.S.No. Q7/78 which was purchased by 44/59 https://www.mhc.tn.gov.in/judis ( Uploaded on: 06/06/2025 04:21:42 pm ) C.M.S.A.(MD)No.40 of 2015 the first respondent vide sale deed dated 02.01.2008. The judgment debtor executed a sale deed in favor of Thiru.Nepal Raj on 25.11.1999, on which date, the sale consideration was Rs.16,00,000/- (Rupees Sixteen Lakhs only), that is, the market value of the land being Rs. 2,92,337/- (Rupees Two Lakhs Ninety Two Thousand Three Hundred and Thirty Seven only) and the building, namely, Saranya Lodge, being Rs.13,07,663/- (Rupees Thirteen Lakhs Seven Thousand Six Hundred and Sixty Three only). Subsequently, the said property was further sold out to the first respondent by execution of a sale deed bearing document No.13 of 2008 dated 02.01.2008 for a sale consideration of Rs.18,00,000/- (Rupees Eighteen Lakhs only). Though the learned senior counsel appearing for the appellant categorically contended that, both of the aforesaid sale deeds were not by-passing of a valid sale consideration and the same was effected without sale consideration, the transaction details of the sale deed marked as exhibit P-2 in page 23 and page 6 of the respective documents would reveal that, the sale consideration has been duly paid by the respective purchasers vide cheque No.946000 dated 11.10.1999 drawn in Tamilnadu Mercantile Bank amount of Rs.2,00,000/- (Rupees Two Lakhs only) and cheque No.193215 dated 02.06.2006 for an amount of Rs.5,00,000/- (Rupees Five Lakhs only) and cheque No.894173 dated 12.10.2006 for an amount of Rs.5,00,000/- (Rupees Five Lakhs only) and cheque No. 45/59 https://www.mhc.tn.gov.in/judis ( Uploaded on: 06/06/2025 04:21:42 pm ) C.M.S.A.(MD)No.40 of 2015 263524 dated 15.10.2007 for an amount of Rs.2,00,000/- (Rupees Two Lakhs only) drawn in Federal Bank.
53.Hence, as on the date of purchase of the 5.550 cents land comprised in Q7/78 of Vadiveeswaram village, the land was valued at Rs.5,39,902/- (Rupees Five Lakhs Thirty Nine Thousand Nine Hundred and Two only) and the building with electricity and bore well along with pump set was valued at Rs.12,60,098/- (Rupees Twelve Lakhs Sixty Thousand and Ninety Eight only) to a total amount of Rs.18,00,000/- (Rupees Eighteen Lakhs only). Exhibit P-4 would reveal that, the said property has been assessed in favour of the first respondent by the Nagercoil municipality from time to time, since the same was purchased by her. Hence, it has become precisely clear from the details of the value of the property which is sought to be attached by the auction purchaser and the affidavit of the first respondent in E.A.No.168 of 2011 on 28.09.2011, would reveal that the property which was sought to have been sold in auction is worth crores of rupees and that the Court auction by which the auction purchaser had purchased the same for a meagre amount of Rs.7,05,000/- (Rupees Seven Lakhs and Five Thousand only) would cause irreparable loss and injury to the first respondent.
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54.It is also clear that, the said sale is made by the plaintiff bank for recovery of an amount of Rs.1,52,682.89/- with 19.85% interest. Hence, no doubt the first respondent has sustained substantial injury by means of the fraud/irregularity committed by filing an application for attachment before judgment with respect to the property of 3 /4 cent land in T.S.No. Q7/72 and 3 cents land in T.S.No. Q7/75 and later correcting the same after the sale proclamation and proceeding to attach the property consisting of 5.550 cents land comprised in R.S. No. Q7/78. Even according to the Amin report marked as exhibit P-7, the value of the property attached is Rs.10,00,000/- (Rupees Ten Lakhs only) as on 25.06.1999. Hence, for a property worth Rs.10,00,000/- (Rupees Ten Lakhs only) as on 25.06.1999, of which, the market value had escalated to Rs.18,00,000/- (Rupees Eighteen Lakhs only) as on 02.01.2008, the sale date which was marked as exhibit P-2, the Execution Court fixed the upset price for the property as Rs. 10,00,000/- (Rupees Ten Lakhs only) on 05.06.2007 and has brought the same for sale.
55.While being so, steps to reduce the upset price was filed by the plaintiff bank in E.A.No. 420 of 2008 and the same was allowed and a proclamation to sell the property by fixing an upset price for Rs. 9,00,000/- (Rupees Nine Lakhs only) was made on 11.09.2007 by the 47/59 https://www.mhc.tn.gov.in/judis ( Uploaded on: 06/06/2025 04:21:42 pm ) C.M.S.A.(MD)No.40 of 2015 Execution Court. Later further steps to reduce the upset price from Rs. 9,00,000/- (Rupees Nine Lakhs only) to Rs.8,50,000/- (Rupees Eight Lakhs Fifty Thousand only) was filed in E.A.No.6 of 2008 on 28.04.2008, on the basis of which, the Execution Court reduced the upset price to Rs.8,50,000/- (Rupees Eight Lakhs and Fifty Thousand only) on 13.02.2009. Subsequently, no bidders turned up to purchase the property. On 29.04.2010, E.A.No.230 of 2010 for further reducing the upset price, was allowed and the upset price was fixed at Rs. 7,00,000/- (Rupees Seven Lakhs only), by the Execution Court following which, sale was conducted on 23.06.2010 and the auction purchaser, that is, appellant herein, purchased the property for an amount of Rs. 7,05,000/- (Rupees Seven Lakhs and Five Thousand only).
56.That apart, the docket diary entries of the Execution Court in E.P.No.50/2000 in O.S.No.234/1998 from 24.07.2000 to 29.10.2010 itself is a self-evident record of the Court which would prove the irregular manner in which the Execution Court has brought down the upset price of the subject property from Rs.10,00,000/- (Rupees Ten Lakhs only) to Rs.7,00,000/- (Rupees Seven Lakhs only). Thus, this Court is fully satisfied that the applicant, that is, the first respondent, who has filed an application under Order 21 Rule 90 of Code of Civil 48/59 https://www.mhc.tn.gov.in/judis ( Uploaded on: 06/06/2025 04:21:42 pm ) C.M.S.A.(MD)No.40 of 2015 Procedure, 1908, had suffered substantial injury by reason of the irregularity and fraud by which the schedule of property of the petition for attachment before judgment has been corrected after the confirmation of the sale, based on which the attachment was proceeded to be executed with respect to a different property which is in the possession of the first respondent.
57.Therefore, it is clear that, there had been a material irregularity in fixing the upset price of the property even on the face of record, more particularly, the diary entries in E.P.No. 50 of 2000. This material irregularity would certainly cause substantial injury to the party concerned.
58.Fraud vitiates solemn Act:
Though the learned senior counsel appearing for the appellant categorically contended that, the fraud which is sought to be established by the applicant under Order 21 Rule 90 of the Code of Civil Procedure, 1908, should have been elaborately pleaded in the application for setting aside the sale and mere pronouncement of the word “fraudulent exercise” would not suffice, Order 21 Rule 101 of the Code of Civil Procedure, 1908, reads as follows:
49/59
https://www.mhc.tn.gov.in/judis ( Uploaded on: 06/06/2025 04:21:42 pm ) C.M.S.A.(MD)No.40 of 2015 “101. Question to be determined - All questions (including questions relating to right, title or interest in the property) arising between the parties to a proceeding on an application under Rules 97 or Rule 99 or the representatives and relevant to the adjudication of the application, shall be determined by the Court dealing with the application and not by a separate suit and for this purpose, the Court shall, not withstanding anything to the contrary contained in any other law for the time being in force, be deemed to have jurisdiction to decide such questions.”
59.Though the application is made by the first respondent under Order 21 Rule 90 of the Code of Civil Procedure, 1908, the same has to be construed as one filed under Order 21 Rule 97 of Code of Civil Procedure, 1908, for the reason that the first respondent had obstructed the taking of delivery of possession on 23.09.2011 claiming title and possession over the same on the strength of the sale deed marked as exhibit P-2. Hence, in terms of Order 21 Rule 101 of Code of Civil Procedure, 1908, all the questions relating to right, title, and interest, arising between the parties to the obstruction petition, shall necessarily be dealt with the Court without relegating the parties to file a separate suit. Hence, the party who is sought to be dispossessed by the strength of a decree in the Execution proceeding necessarily the said party has to move the Execution Court under Order 21 Rules 97 to 50/59 https://www.mhc.tn.gov.in/judis ( Uploaded on: 06/06/2025 04:21:42 pm ) C.M.S.A.(MD)No.40 of 2015 99 of the Code of Civil Procedure, 1908, for the purpose of proving his title and possession over the same.
60.From the materials available on record, it is evident that the first respondent has approached the Execution Court invoking the provision under Order 21 Rule 90 of the Code of Civil Procedure, 1908, by invoking a wrong provision instead of Order 21 Rule 97 to 99 of the Code of Civil Procedure, 1908. It is a settled proposition of law that, filing an application under a wrong provision of law will not vitiate the dispensation of justice, I am of the considered view that the application under Order 21 Rule 90 of Code of Civil Procedure, 1908, filed by the first respondent could be construed as one filed under Order 21 Rule 97 to 99 of Code of Civil Procedure, 1908. In the said petition when the third party/obstructor/the first respondent, has brought to the notice of this Court, the way in which the subject property has been fraudulently attached without giving notice to the first respondent who is in possession and title of the same or without affixing any notice in the aforesaid property which was sought to be attached and brought for auction and the manner in which the decree holder had attached and sold an area of 3/4 cents in R.S. No.Q7/76 which do not belong to the first respondent and 3 cents in R.S. No.Q7/78 which is a total extent of property comprising an area of 5.550 cents land in which a 4 storied 51/59 https://www.mhc.tn.gov.in/judis ( Uploaded on: 06/06/2025 04:21:42 pm ) C.M.S.A.(MD)No.40 of 2015 building lodge in the name of “Saranya Lodge” comprising 24 rooms is situated.
61.It was also pleaded in the aforesaid application that, the decree holder had not sold that property which was brought in the decree in the Execution proceedings. It is also pleaded that, the decree holder had fraudulently attached the property suppressing the real facts sold in auction for the purpose of getting unlawful gain trying to evict the first respondent from the property. It is also properly pleaded that, for a decree of 3 and 3/4 cents land, the entire lodge which is situated in an extent of 5.550 cents land in R.S. No. Q7/78 has been brought for sale and attached in auction and was sought to get delivered. Whenever a Court is misled by a party or a Court itself commits a mistake which prejudices a party, the Court has inherent powers to recall its order.
62.In the instant case, the Execution Court having diligently traced out the factual misgivings of the plaintiff bank who is the petitioner in the Execution petition by effecting the material corrections in the survey number in the area and description of property of the schedule of property of the attachment before judgment petition in I.A.No.384 of 1998 and having arrived at a conclusion that the same has been effected during the pendency of the Execution proceeding by 52/59 https://www.mhc.tn.gov.in/judis ( Uploaded on: 06/06/2025 04:21:42 pm ) C.M.S.A.(MD)No.40 of 2015 giving due weightage to the documents which were marked as exhibit P-9, P-10, P-11, P-12, and P-13, the said Court ought to have immediately recalled the order. On the other hand, the Execution Court proceeded to conclude that boundaries would prevail upon survey number and extent and that the identity of the property as “Saranya lodge” would suffice. However it is unfortunate that the learned Execution Court failed to appreciate that fraud vitiates solemn act.
63.The Honorable Apex Court in the case of Indian Bank .vs. satyan fibers India Private Limited16 has dealt with the case of fraud and the relevant portion is extracted as follows:
23. Since fraud affects the solemnity, regularity and orderliness of the proceedings of the court and also amounts to an abuse of the process of court, the courts have been held to have inherent power to set aside an order obtained by fraud practised upon that court. Similarly, where the court is misled by a party or the court itself commits a mistake which prejudices a party, the court has the inherent power to recall its order. (See: Benoy Krishna Mukerjee v. Mohanlal Goenka; Gajanand Sha v. Dayanand Thakur;
Krishnakumar v. Jawand Singh; Devendra Nath Sarkar v. Ram Rachpal Singh; Sayied Mohd. Raza v. Ram Saroop; Bankey Behari Lal v. Abdul Rahman; Lekshmi Amma Chacki Amma v. Mammen Mammen.) The court has also the inherent power to set aside a sale 16 1996 5 SCC 550 53/59 https://www.mhc.tn.gov.in/judis ( Uploaded on: 06/06/2025 04:21:42 pm ) C.M.S.A.(MD)No.40 of 2015 brought about by fraud practised upon the court ( Ishwar Mahton v. Sitaram Kumar) or to set aside the order recording compromise obtained by fraud. ( Bindeshwari Pd. Chaudhary v. Debendra Pd. Singh; Tara Bai v. V.S.Krishnaswamy Rao.)
64.In yet another case, this Court has dealt with fraud in auction purchase in the case Raghavan (died) and others vs. Sivakumar and others17 and the relevant portion of the same is extracted as follows:
“24. However, when fraud stares upon the Court, the Court can invoke its inherent power to set aside the sale. The application of the revision petitioner could be treated as an information to the Court and when a fraud is brought to the notice of the Court, it is the duty of the Court to scan the said allegation to arrive at the truth.
25. The Hon'ble Division Bench of this Court in a judgment reported in Raghavachariar v. Murugesa Mudali and Others (1923) 44 MLJ 680 : LNIND 1923 MAD 29 : AIR 1923 Madras 635 has held as follows:
“.... But, in my judgment, the Court has an inherent power to refuse to allow the sale to be carried out if it is satisfied that the Court has been misled either in giving leave to bid or in fixing the reserve price. This is only an instance of the inherent power possessed by all the Courts to prevent an abuse of the processes of the Court, but, of course, the Court will not use that inherent power unless it has had all the facts fully before it and is satisfied that is 17 (2023) 6 MLJ 73 54/59 https://www.mhc.tn.gov.in/judis ( Uploaded on: 06/06/2025 04:21:42 pm ) C.M.S.A.(MD)No.40 of 2015 has been misled. I think the principle is that, in order to show that the Court has been misled, it is necessary to show either actual mis-
statements to the Court or non-disclosure to the Court of relevant facts unknown to the Court and which there was a duty to bring before the Court.
29. ..... it is clear that in a case where a fraud or material irregularity in publishing or conducting a Court auction sale is brought to the notice of the Court, whether the applicant is having locusstandi or not, the Court has to exercise its inherent power to see that the benefits do not accrue to the decree holder or the auction purchaser as the case may be. Dismissing such an application on the ground of locusstandi would only result in perpetrating the material irregularity or fraud.”
65.In tune with the judgments extracted supra, the learned First Appellate Court had proceeded to call for the attachment register, auction register, register for sale certificate, and proceeded to ensure that the properties attached were only 3/4 cent land comprised in T.S.No. Q7/72 and 3 cents land comprised in T.S.No. Q7/75 and categorically recorded that, the survey number in the auction register and the petition for attachment before judgment in I.A.No.384 of 1998 was corrected as R.S.No. Q7/76 and R.S.No. Q7/78, after the sale of the properties in the Court auction sale. Concluding that, the same is a 55/59 https://www.mhc.tn.gov.in/judis ( Uploaded on: 06/06/2025 04:21:42 pm ) C.M.S.A.(MD)No.40 of 2015 clear fraud committed on the proceedings of the Court which is illegal and unauthorized correction of survey numbers, the learned District Judge proceeded to set aside the Court auction sale reversing the order passed by the Execution Court.
66.Fully fortified by the judgment reported in 2023 (6) MLJ, I am of the considered view that dismissing an application filed by the obstructor under Order 21 Rule 90, Code of Civil Procedure, 1908, on the ground of locus standi would only result in perpetrating the material irregularity or fraud. To make sure that the benefits of such an order of attachment and order of sale and Court auction obtained by exercising fraud and material irregularity on the proceedings of the Court should not accrue on the decree holder or the auction purchaser as the case may be. The way in which the learned First Appellate Court exercising its inherent power set aside the sale deed has to be necessarily confirmed.
67.Recording the fact that, the sale has been brought in this case only by fraud practiced upon Court, I do not find any necessity to interfere with the judgment and decree setting aside the sale passed by the First Appellate Court. Since the source of information of the fraudulent act played upon by the Execution Petitioner as well as the 56/59 https://www.mhc.tn.gov.in/judis ( Uploaded on: 06/06/2025 04:21:42 pm ) C.M.S.A.(MD)No.40 of 2015 auction purchaser by the person whose interest has been affected by the sale, that is, the first respondent, it is a bounden duty of the Court to swiftly exercise its inherent power towards the fact finding of the fraud committed on the Court and the material irregularity which has been perpetrated by the parties concerned and ensure that the dispensation of justice is not abused. Since fraud vitiate solemn acts the question of the application of the first respondent being barred by limitation would not arise and the Court has inherent powers to proceed and take forward the allegations of fraud substantiated by the person whose interest has been affected adversely by the fraudulent sale and auction proceedings to satisfy itself that the process of Court has not been abused.
68.Accordingly, I do not find any merit in the C.M.S.A., filed before this Court and there is no necessity to interfere with the impugned order challenged before this Court. Accordingly, the C.M.S.A., fails and the same is dismissed. No costs. Consequently, connected miscellaneous petitions are dismissed.
08.05.2025 NCC : Yes / No Index : Yes / No Internet : Yes Sml 57/59 https://www.mhc.tn.gov.in/judis ( Uploaded on: 06/06/2025 04:21:42 pm ) C.M.S.A.(MD)No.40 of 2015 To
1.The District Judge, Kanyakumari at Nagercoil
2.The First Additional Subordinate Judge, Nagercoil.
Copy to The Section Officer, Vernacular Records, Madurai Bench of Madras High Court, Madurai.
58/59 https://www.mhc.tn.gov.in/judis ( Uploaded on: 06/06/2025 04:21:42 pm ) C.M.S.A.(MD)No.40 of 2015 L.VICTORIA GOWRI, J., Sml C.M.S.A.(MD)No.40 of 2015 08.05.2025 59/59 https://www.mhc.tn.gov.in/judis ( Uploaded on: 06/06/2025 04:21:42 pm )