Madras High Court
V.Ramalingam vs B.Baghiyam on 25 July, 2012
Author: G.Rajasuria
Bench: G.Rajasuria
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:25.07.2012 Coram: THE HONOURABLE MR.JUSTICE G.RAJASURIA C.R.P.(NPD) No.3096 of 2011 and M.P.No.1 of 2011 V.Ramalingam ... Petitioner vs 1. B.Baghiyam 2. V.Jayasundaram ... Respondents This civil revision petition is preferred under Section 115 of the Code of Civil Procedure as against the fair and decreetal orders dated 28.04.2011 passed by the learned I Additional District Munsif, Coimbatore in E.A.No.158 of 2011 in E.A.No.359 of 2005 in E.P.No.166 of 1996. For Petitioner : Mr.N.Manokaran For Respondents : Mr.Su.Srinivasan ORDER
This civil revision petition is focussed as against the order and decreetal orders dated 28.04.2011 passed by the learned I Additional District Munsif, Coimbatore in E.A.No.158 of 2011 in E.A.No.359 of 2005 in E.P.No.166 of 1996.
2. Compendiously and concisely, the germane facts absolutely necessary and germane for the disposal of this civil revision petition would run thus:
a) The second respondent-Jayasundaram/decree holder filed E.P.No.166 of 1996 for bringing the property of the Judgment Debtor Baghiyam in the court auction sale so as to recover the decreetal amount. After receipt of the E.P notice, the Judgment Debtor engaged a lawyer, who filed vakalat; however, she did not file counter. Whereupon, the judgment debtor was set exparte and up went the E.P proceedings and ultimately culminated in the revision petitioner herein purchasing the said property in the court auction sale and the sale was confirmed; sale certificate was also issued and the E.P was closed. Thereafter, one another application was filed for delivery to be taken by the auction purchaser. At that time, the court Amin went to the spot.
b) According to the Judgment Debtor only at that time, she came to know about the proceedings in the E.P and the sale of the property in the court auction sale. Whereupon, she filed E.A.No.359 of 2005 on 05.03.1999 to get set aside the exparte order dated 28.11.1996 passed in E.P.No.166 of 1996 without filing any application to get condoned the delay of 796 days as on the date of filing the said application E.A.No.359 of 2005. There is no knowing of the fact as to how such E.A was numbered at all. It appears that the decree holder filed counter in E.A.No.359 of 2005 objecting to such an application on the main ground that it was barred by limitation. Whereupon only on 01.04.2011 an application under Section 5 of the Limitation Act was filed by the Judgment Debtor to get the delay of 796 days condoned in filing the application in E.A.No.359 of 2005.
c) Surprisingly, in the said E.A.No.158 of 2011, the decree holder endorsed 'no objection'. Whereupon, the court passed the following order:
"4. Counter statement is not filed by the respondent.
5. Now the point for consideration is whether the petition has to be allowed or not?
6. Since the set aside petition had already been numbered by the predecessor and the same is pending disposal in E.A.No.359 of 2005 for a prolonged period of 6 years and the other side also endorsed no objection, this petition is allowed."
It has to be noted that the revision petitioner herein, who happened to be the third party auction purchaser. purchased in the court auction sale, got the sale confirmed even as early as 16.06.1997. At the time of filing E.A.No.359 of 2005 on 05.03.1999, even though the judgment debtor, who filed the said application was aware of the fact that the revision petitioner's interest was involved, she had not chosen to cite him as one of the respondents. Once again, it is shocking to note as to how such an application was numbered by the court office and the lower court Judge also failed to take note of it.
d) Adding fuel to the fire, the E.A.No.158 of 2011 was filed without adding the revision petitioner as party respondent and that was also numbered mechanically and that too under Section 5 of the Limitation Act, which is not at all applicable for execution proceedings. The proper provision of law to get the delay condoned is Order 21 Rule 106 of the Code of Civil Procedure the amended proviso inserted by Act 104 of 1976.
As such, narrating the aforesaid glaring and flagrant illegalities, the revision petitioner correctly preferred this revision petition with the leave of the court.
3. Heard both sides.
4. The point for consideration is as to whether the order dated 28.04.2011 passed in E.A.No.158 of 2011 should be allowed to stand as such in the wake of the illegalities?
5. The learned counsel for the first respondent/judgment debtor as of now could not convincingly put forth any plea except the one that the judgment debtor is a lady; she was helpless; she believed her advocate; she was not informed about the happenings in the E.P and only when the court Amin went to effect delivery in favour of the third party auction purchaser, she swung into action etc. Over and above that he would also try to project the judgment debtor's case that her property was sold for a rock bottom price; for a song; for next to nothing price, etc. Accordingly, he would pray for the dismissal of the revision petition.
6. In a bid to extirpate and torpedo the arguments and pleas as put forth on the side of the first respondent/judgment debtor, the learned counsel for the revision petitioner would submit that the records would indicate and exemplify that the procedure adopted by the lower court at the instance of the judgment debtor is inch by inch fraught with illegality as neither the application in E.A.No.359 of 2005 nor the application in E.A.No.158 of 2011 should have been numbered without even citing the revision petitioner-third party purchaser as one of the respondents. E.A.No.359 of 2005 was filed after a delay of 796 days without even filing an application to get the delay condoned. However by way of putting the horse behind the cart and that too as an after thought, after near about 6 years such an application in E.A.No.158 of 2011 was filed so as to and camouflage and conceal the fault committed by the judgment debtor and in that the decree holder in collision with the judgment debtor simply endorsed no objection, which is a horrifying factor and in such a case, the order dated 28.04.2011 should be set aside.
7. The above narration of facts would ex facie and prima facie would exemplify and demonstrate that the order dated 28.04.2011 is having no legs to stand, which is nothing short of perversity. The circumstances already highlighted supra that the application in E.A.No.158 of 2011 should not have been numbered even, without citing the third party purchaser as one of the respondents. Over and above that absolutely no reason is found spelt out for condoning such huge delay of 796 days, which was virtually filed almost 6 years after the date of filing of E.A.No.358 of 2005.
8. The learned counsel for the revision petitioner would also highlight one other point that even though the said E.A.No.359 of 2005 was presented on 5.3.1999 to get set aside the order in E.P.No.166 of 1996 that was got numbered immediately but only during the year 2005 and this is another shocking state of affairs for which, the Executing Court is obviously answerable.
9. Hence, I am having no hesitation in setting aside the order dated 28.04.2011. However the learned counsel for the revision petitioner would submit that the entire application in E.A.No.158 of 2011 may be dismissed so that the illegalities perpetrated by the judgment debtor could be quelled; for which the learned counsel for the judgment debtor would submit that on setting aside the order, opportunity might be given to the judgment debtor to implead the revision petitioner as R2 and he could also be given liberty to file counter; whereupon the Executing Court might be directed to pass orders.
10. I am of the considered view that the revision petitioner herein was not at all a party in E.A.No.158 of 2011; however, he is the person, who is actually affected by the said order. Hence, this court by invoking Article 227 of the Constitution of India inclines to set aside the said order. While so, I do not think that entire E.A.No.158 of 2011 should be dismissed; the proper course would be to direct the judgment debtor, if he wants to pursue that application, to implead the revision petitioner as R2 therein; whereupon the Executing court after such impleadment shall give due opportunity of filing counter by the third party auction purchaser; thereafter it shall on hearing both sides pass a reasoned order. The said application shall be disposed of within a period of two months from the date of receipt of a copy of this order.
11. Accordingly, this civil revision petition is disposed of. No costs. Consequently, the connected miscellaneous petition is closed.
25.07.2012
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To
The I Additional District Munsif, Coimbatore
G.RAJASURIA,J
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C.R.P.(NPD) No.3096 of 2011
25.07.2012