Madras High Court
The Secretary vs Chellathankam on 9 April, 2009
Author: M.Venugopal
Bench: M.Venugopal
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 09/04/2009 CORAM THE HONOURABLE MR.JUSTICE M.VENUGOPAL C.R.P.(NPD)MD.No.2115 of 2008 and M.P(MD)No.2 of 2008 The Secretary, Tamil Nadu State Transport Corporation, Madurai Division III, Employees Co-operative Housing Society Ltd., T.N.V.K.S.G.49, Ranithottam, Nagercoil, Nagercoil Village, Agasteeswaram Taluk, Kanyakumari District. ... Appellant/Petitioner/Stranger/Petitioner Vs. 1.Chellathankam 2.Bovas 3.Devadhas ... Respondents/Respondents/ Plaintiff, defendant and Auction Purchaser/Respondents Prayer Civil Revision Petition filed under Section 115 of the Code of Civil Procedure, against the judgment and decree dated 11.07.2008 of the learned District Judge, Kanyakumari, at Nagercoil, passed in C.M.A.No.59 of 2003 confirming the order and decreetal order dated 11.09.2003 of the learned Subordinate Judge, Padmanabhapuram, passed in E.A.No.422 of 2002 in E.P.No.30 of 2001 in O.S.No.54 of 2000. !For Petitioner ... Mr.K.N.Thambi ^For Respondents ... Mr.C.Godwin for R.3 No appearance for R1 and R2 * * * * * :ORDER
The civil revision petitioner/appellant/third party has filed this civil revision petition as against the judgment and decree dated 11.07.2008 in C.M.A.No.59 of 2003 passed by the learned District Judge, Kanyakumari at Nagercoil, in confirming the dismissal order dated 11.09.2003 in E.A.No.422 of 2002 in E.P.No.30 of 2001 in O.S.No.54 of 2000 passed by the learned Subordinate Judge, Padmanabhapuram.
2. The trial Court while passing orders in E.A.No.422 of 2002 in E.P.No.30 of 2001 in O.S.No.54 of 2000, has among other things, observed that the revision petitioner/third party is not a party to the suit proceedings in O.S.No.54 of 2000 and therefore, the said Execution Application filed by the revision petitioner/third party is not maintainable and further that the auction has been confirmed on 18.02.2002 as per Order XXI Rule 19 of the Code of Civil Procedure and that the Execution Application filed by the revision petitioner to set aside the auction already confirmed by the Court, is not maintainable and resultantly, dismissed the said application with costs.
3. Being dissatisfied with the order passed by the trial Court in E.A.No.422 of 2002 in E.P.No.30 of 2001 in O.S.No.54 of 2000, the revision petitioner herein as an appellant preferred the appeal in C.M.A.No.59 of 2003 on the file of the learned District Judge, Kanyakumari at Nagercoil.
4. The learned District Judge, Kanyakumari at Nagercoil, has passed the judgment in C.M.A.No.59 of 2003 dated 11.07.2008, inter alia holding that the revision petitioner/appellant is not entitled to the relief of setting aside the sale as per Section 47 of the Code of Civil Procedure and Section 47 of the Code of Civil Procedure is not applicable to the revision petitioner/appellant and moreover, the revision petitioner/appellant is not entitled to get set aside the sale which has already been confirmed on 18.02.2002 under Order XXI Rule 20 or Section 47 of the Code of Civil Procedure and dismissed the said Civil Miscellaneous Appeal without costs.
5. According to the learned Counsel for the revision petitioner/third party, the first appellate Court viz., the learned District Judge, Kanyakumari at Nagercoil, has not appreciated in proper perspective all the materials on record in the case and this has resulted in grave miscarriage of justice and the order passed by the trial Court in E.A.No.422 of 2002 dated 11.09.2003 and the judgment passed by the first appellate Court in C.M.A.No.59 of 2003 dated 11.07.2008, do practically nullify the hypothications of the property in favour of the revision petitioner for the heavy amount due to the revision petitioner from the second respondent (defendant) and as a result of which, the revision petitioner is handicapped in recovering the heavy due amount and therefore, the order of the trial Court in E.A.No.422 of 2002 dated 11.09.2003 and the judgment of the first appellate Court in C.M.A.No.59 of 2003 dated 11.07.2008, are unsustainable in the eye of law and moreover, the revision petitioner/Society has no knowledge of any proceedings and the property has been brought to sale behind the back of the revision petitioner/Society and there has been a collusion between the first respondent (plaintiff) and the third respondent (auction purchaser) being the co-brothers and further, a fraud has been played in the case and a very meagre amount has been shown as the value of the property in the sale proclamation and in fact, the value of the property has been worth more than Rs.10,00,000/- (Rupees Ten Lakhs only), but the same has been fixed at Rs.1,50,000/- (Rupees One Lakh and Fifty Thousand only) and sold for Rs.1,50,300/- (Rupees One Lakh Fifty Thousand and Three Hundred only) and therefore, prays for allowing the civil revision petition in furtherance of substantial cause of justice.
6. Continuing further, the learned Counsel for the revision petitioner/third party, submits that the revision petitioner has not been impleaded in E.A.No.422 of 2002 in E.P.No.30 of 2001 in O.S.No.54 of 2000 on the file of the learned Subordinate Judge, Padmanabhapuram, inspite of first charge on the property and the same is in encumbrance certificate and that E.A.No.422 of 2002 has been filed in time and as a matter of fact, the Executing Court has failed to consider the evidence of P.W.1 or any of the four documents marked as Exs.P.1 to p.4 on the side of the revision petitioner in the said E.A.No.422 of 2002 and this has resulted in injustice and consequently, the civil revision petition has to be allowed to prevent aberration of justice.
7. In E.A.No.422 of 2002 in E.P.No.30 of 2001 in O.S.No.54 of 2000 on the file of the learned Subordinate Judge, Padmanabhapuram, the Secretary of the revision petitioner Society has averred that the second respondent herein (defendant in O.S.No.54 of 2000) has borrowed a sum of Rs.3,20,000/- (Rupees Three Lakhs and Twenty Thousand only) from the revision petitioner Society as per two hypothication bonds dated 28.07.1995 and 31.12.1998 respectively as house loan and used the same for constructing a house in the attachment schedule property and after observing all the loan formalities, the second respondent/defendant has constructed the building in the schedule property and the building has been completed and Valvachagoshtam Panchayat has assigned the door number 25 - 60 / 41 - 1 and as on 15.04.2002, a sum of Rs.5,07,319.70 is due to the revision petitioner society from the second respondent charged on the Scheduled property and the said loan amount due to the revision petitioner Society is the first charged which has come in encumbrance certificate and the revision petitioner Society now has come to know that the plaintiff in O.S.No.54 of 2000 namely,the first respondent in this revision has filed a suit in collusion with the second respondent herein viz., the defendant therein, for the debt incurred by him from the first respondent/plaintiff, subsequent all the debt of the petitioner Society and attached the property and has prayed the property for sale in collusion with the respondents 1 and 2 suppressing the debt due to the revision petitioner Society and the property has been brought to sale at a lowest price of Rs.1,50,000/- and in none of the proceedings, the petitioner Society has been made as a party and that no paper publication has been made and moreover, the petitioner Society has no knowledge about the proceedings and in fact, the plaintiff and the defendant have adopted a fraud by influencing Ameen by valuing the property for a meagre value of Rs.1,50,300/- and that the petitioner Society has come to know about the illegal act of the respondents on 30.06.2002 and immediately, filed an impleading application and the same is pending before the Court and since much irregularity, collusion and fraud have been played by the respondents in bringing the property to sale, the auction held on 21.11.2001 in E.P.No.30 of 2001 in O.S.No.54 of 2000 is liable to be set aside and the same is null and void and not proper.
8. In the counter filed the first respondent to E.A.No.422 of 2002, it is mentioned that the Execution Application is not maintainable in law and that paper publication has been made about the sale and the sale proclamation has correctly drawn excluding the debt of the revision petitioner and there is no irregularity in conducting the sale and excluding the debt of the revision petitioner, the right of the judgment debtor is brought to the sale and that application is barred by limitation and therefore, has prayed for the dismissal of the application with costs.
9. Expatiating his arguments, the learned Counsel for the revision petitioner submits that the E.A.No.422 of 2002 filed by the revision petitioner before the Executing Court is maintainable in law and that Article 137 of the Limitation Act applies to the present case on hand before this Court. Further the contention of the learned Counsel for the revision petitioner/third party is that once a sale is void, then Article 137 of the Limitation Act, applies and therefore, the Executing Court is not correct in holding that Article 127 of the Limitation Act is squarely applicable to the facts of the case.
10. In support of his contention that the judgment dated 21.09.2000 in O.S.No.54 of 2000, has been obtained by the first respondent/plaintiff against the second respondent/defendant fraudulently, the learned Counsel for the revision petitioner/third party, submits that if a judgment or a decree has been obtained by adopting fraud, then it has to be treated as non-est and nullity in the eye of law and cites the decision of the Honourable Supreme court in A.V.Papayya Sastry and others v. Govt. of A.P and others reported in (2007) 4 Supreme Court Cases 221 at page 222, wherein it is observed thus:
"Fraud may be defined as an act of deliberate deception with the design of securing some unfair or undeserved benefit by taking undue advantage of another. In fraud one gains at the loss of another. Even the most solemn proceedings stand vitiated if they are actuated by fraud. Fraud is thus an extrinsic collateral act which vitiates all judicial acts, whether in rem or in personam."
11. Further, in the aforesaid judgment, at page 222, it is also held that 'once it is established that the order was obtained by a successful party by practising or playing fraud, it is vitiated. Such order cannot be held legal, valid or in consonance with law.'
12. Continuing further, the learned Counsel for the revision petitioner contends that if a judgment has been obtained by playing fraud on the Court, then it can be challenged in any Court at any time in appeal, revision, writ or even in collateral proceedings and therefore, E.A.No.422 of 2002 filed by the revision petitioner/third party is maintainable in law.
13. The learned Counsel for the revision petitioner relies on the decision of this Court in Merla Ramanna v. Nallaparaju and others reported in AIR 1956 SC 87 wherein it is held as follows:
"Article 166 applies only when the sale is one which has under the law to be set aside as for example, under O.21 Rr.89, 90 and 91, Civil P.C., but it has no application when the sale is inoperative and void. ... When a sale in execution is inoperative and void, an application by a judgment debtor to have it declared void and for appropriate reliefs is governed by Art. 181 and not Art. 166: Case law referred. ...
In this view, where a mortgge decree authorised only the sale of the mortgage rights and not the lands which were the subject-matter of that mortgage, the judgment-debtors are entitled to apply to the Court for delivery of possession of the properties wrongly sold through process of Court and delivered to the decree-holder auction-purchaser and such an application would be governed by Art.181."
14. He also brings it to the notice of this Court the decision of this Court in Rajagopala Aiyar v. Ramanujachariyar and another reported in 1924 Madras 431 (F.B) at page 432, wherein it is observed that 'where an execution sale is void as against a party and he applies for relief under S.47, Civ.Pro. Code or otherwise, the article applicable is Art.181 and not Art.166.' Moreover, it is also observed that 'where an application is made which is partly covered by r.90 and partly not so covered, a second appeal will lie although the order purports to have been made under r.92. Failure to give notice of the application for leave to attach and sell is not an irregularity in publishing or conducting the sale.'
15. Added further, he draws the attention of this Court to the decision in Venkateswara Ettu Naicker v. Ayyammal and others reported in AIR (37) 1950 Madras 367 wherein it is held as follows:
"An application to set aside an execution sale under O.21 R. 90 Civil P.C., is governed by Art.166 but where the sale itself is illegal and void, Art.166 would have no application. It is the residuary Art.181 that would apply."
16. He also places reliance on the decision in Hira Lal and others v. Mst.Champa and others reported in AIR 1955 ALLAHABAD 226 wherein it is laid down as follows:
"As an objection that the provisions of O.21, R.85 had not been complied with is not an objection relating to the publication and conduct of the sale, O.21 Rr.90 and 92 will not apply to it and S.104(2) will not bar a second appeal. AIR 1922 All 200 (FB), Foll."
17. He further presses into service the decision of the Honourable Supreme Court in V.Swarajyalaxmi and others v. Authorised officer, Land Reforms, Medak and others reported in AIR 2003 SUPREME COURT 2347, at pages 2351 and 2352, wherein it is observed as follows:
"16. Learned counsel for the appellants contended that the order passed by the Land Reforms Appellate Tribunal on 09-11-1977 was not challenged and therefore, it had become final and binding on the parties inter se. We find no force in this contention. Firstly, it is an order without jurisdiction. It is for the Execution Court to decide as to whether the court has got jurisdiction to proceed against any land pursuant to the decree passed by the court. Secondly, the decree-holder can bring to sale only the rights, if any, of the judgment-debtors over the land. Once an extent of 148.74 acres of land was declared to be surplus land and it came to vest in the Government under Section 11 of the Ceiling Act, the original declarants ceased to have any right or title over that land. When the original judgment-debtors had no saleable interest in the land, nothing could have been sold by the court in the execution proceedings.
17. It is true that the sale conducted by the court should be given due sanctity and the purchaser's rights be protected to the extent allowed by law. But when the judgment-debtors had no saleable interest, no title would pass on to the purchaser. Even if it is assumed that the sale was validly done, no title could be said to have passed to the purchasers as the Bank had no saleable interest in the surplus lands declared by the judgment-debtors.
18. Moreover, in this case, the Execution Court held in its order dated 07-08-1981 that the land was not liable to be sold as it was surplus land at the hands of the declarants and it vested with the Government. This order was not set aside in any subsequent proceedings. This order was further fortified by the order passed in CRP.No.495 of 1985. In spite of these orders, the Execution Court issued the sale certificate in favour of the appellants, which was clearly erroneous. It is true that this order was challenged by the State unsuccessfully. But in the absence of a valid title having been acquired in law by the purchasers over the surplus lands, the whole proceedings pursuant to the court auction sale are vitiated and the learned single Judge has rightly set aside the order passed by the Lands Reforms Appellate Tribunal."
18. The learned Counsel for the third respondent/auction purchaser, submits that the Executing Court cannot go into the validity of the decree in O.S.No.54 of 2000 dated 21.09.2000 by passed by the learned Subordinate Judge, Padmanabhapuram, and that the Executing Court is bound to execute the decree as it stands and in support of the said contention, he cites the decision of this Court in Ganapathi and another v. Balasubramania Gounder reported in AIR 1987 MADRAS 124, wherein it is held as follows:
"The executing Court must execute the decree as it stands and it cannot go into the correctness or validity of the decree except when the decree is nullity. If the decree is of a Court with jurisdiction, the executing Court is bound to execute the decree as it stands."
19. He also further contends that to set aside a sale in execution of decree, the period of limitation prescribed is sixty days and the time begins to run from the date of sale and therefore, Article 127 of the Limitation Act squarely applies to the facts of the present case and places strong reliance to the decision of the Honourable Supreme Court in P.K.Unni v. Nirmala Industries and others reported in AIR 1990 SUPREME COURT 933 wherein it is inter alia observed that 'Prior to the Amending Act 104 of 1976 the period prescribed by Art.127 was 30 days. As a result of the amendment, a period of 60 days is provided for making an application to set aside a sale. It is important to remember that Art.127 appears in Part I of Third Division of the Schedule to the Limitation Act, 1963, dealing exclusively with applications. Article 127 thus relates solely to the making of an application and not to a deposit. This Article governs application made under Rules 90 and 91 as well.'
20. He also refers to the decision of the Honourable Supreme Court in Vasudev Dhanjibhai Modi v. Rajabhai Abdul Rehman and others reported in AIR 1970 SUPREME COURT 1475, at 1476, wherein it is held that 'A Court executing a decree cannot go behind the decree between the parties or their representatives; it must take the decree according to its tenor, and cannot entertain any objection that the decree was incorrect in law or on facts. Until it is set aside by an appropriate proceeding in appeal or revision, a decree even if it be erroneous is still binding between the parties.'
21. Countering the submissions of the learned Counsel for the third respondent, the learned Counsel for the revision petitioner/third party, submits that in the case on hand before this Court, the execution of sale is questioned as void and therefore, Section 47 of the Civil Procedure Code applies and consequently, E.A.No.422 of 2002 filed by the revision petitioner/third party is legally maintainable.
22. As a matter of fact, the learned Counsel for the revision petitioner contends that in the case of hand, there is no sale in the eye of law and therefore, nothing remains to be avoided.
23. On the side of the revision petitioner/third party, it is submitted that Order XXI Rule 66 of the Code of Civil Procedure deals with proclamation of sales by public auction and the proclamation should be drawn up after specifying any encumbrances to which the property is liable. In Appendix E under the caption 'execution', Form No.29, deals with the proclamation of sale and the entries mentioned in the form should be filled up with dates and in the present case, in the aforesaid form, the judgment debtor's interest is left blank and the encumbrance is also not clear and that the encumbrance detail is not mentioned and the Court sale of the property in issue is in suppression of the hypothication deeds dated 28.07.1995 and 31.12.1998 respectively and therefore, the interest of the revision petitioner Society has been affected prejudicially and hence, there is a fraud and therefore, the Court sale held on 21.11.2001 is a void sale and as such, the period of limitation is three years and the time begins to run when the right to apply accrues as per Article 137 of the Limitation Act and since the revision petitioner has come to know about the illegal act of the respondents on 30.06.2002, immediately filed the impleading application.
24. It is useful to refer to Article 127 of the Limitation Act which run as follows:
Description of application Period of limitation Time from which period begins to run
127. To set aside a sale Sixty days The date of the sale.
in execution of a decree, including any such application by a judgment-debtor.
25. It is significant to make a mention that Article 137 of the Limitation Act, Part II dealing with Other Applications, specifies as follows:
Description of application Period of limitation Time from which period begins to run
137. Any other application for Three years When the right to apply accrues.
which no period of limitation is provided elsewhere in this division.
26. At this stage, it is pertinent for this Court to point out that Section 47 of the Code of Civil Procedure enjoins as follows:
"S.47. Questions to be determined by the Court executing decree.- (1) All questions arising between the parties to the suit in which the decree was passed, or their representatives, and relating to the execution, discharge or satisfaction of the decree shall be determined by the Court executing the decree and not by a separate suit.
...
(3) Where a question arises as to whether any person is or is not the representative of a party, such question shall, for the purposes of this section, be determined by the Court.
[Explanation I.- For the purposes of this section, a plaintiff whose suit has been dismissed and a defendant against whom a suit has been dismissed are parties to the suit.
Explanation II.- (a) For the purposes of this section, a purchaser of property at a sale in execution of a decree shall be deemed to be a party to the suit in which the decree is passed; and
(b) All questions relating to the delivery of possession of such property to such purchaser or his representative shall be deemed to be questions relating to the execution, discharge or satisfaction of the decree within the meaning of this section.]"
27. Concededly, the revision petitioner/third party is not a party, the suit in O.S.No.54 of 2000 on the file of the learned Subordinate Judge, Padmanabhapuram, in which a judgment has been passed on 21.09.2000. In short, in O.S.No.54 of 2000, the first respondent herein has been figured as the plaintiff and the second respondent has been figured as the defendant. Indeed, the exercise of power under Section 47 is microscopic and revolves in a very narrow inspection hole, in the considered opinion of this Court.
28. Inasmuch as the revision petitioner is not a party to the suit proceedings in O.S.No.54 of 2000 on the file of the learned Subordinate Judge, Padmanabhapuram, he is a stranger/third party and therefore, Section 47 of the Code of Civil Procedure will not apply insofar as the revision petitioner is concerned.
29. In E.P.No.30 of 2001 in O.S.No.54 of 2000, the auction has been taken place on 21.11.2001. The revision petitioner/third party has filed E.A.No.422 of 2002 on 05.09.2002. However, auction has been confirmed on 18.02.2002. As per Article 127 of the Limitation Act, to set aside a sale in execution of a decree, including any such application by a judgment-debtor, the period of limitation prescribed is sixty days from the date of sale. Admittedly, in the case on hand, E.A.No.422 of 2002, has been filed on 05.09.2002 before the lower Court nearly after six months and eighteen days from the date of confirmation of sale on 18.02.2002.
30. It is to be noted that as per Article 127 of the Limitation Act, the period of limitation is sixty days to set aside the sale in execution of a decree including any such application by a judgment-debtor and the sixty days has been substantiated by Act 104/1976, S.98 for thirty.
31. Section 137 of the Limitation Act, can come into the operative play for filing any other application for which, no period of limitation has been provided elsewhere in this division and the period of limitation is three years which begins to run, when the right to apply accrues.
32. In view of the fact that in the Limitation Act, there is a specific provision namely, Article 127 of the Limitation Act, to set aside the sale in execution of a decree including any such application by a judgment-debtor for which the period of limitation is sixty days from the date of sale, this Court is of the view that in the present case on hand, Article 127 of the Limitation Act squarely applies and not Article 137 of the Limitation Act and further, inasmuch as, E.A.No.422 of 2002 has been filed on 05.09.2002 before the lower Court long after the confirmation of sale on 18.02.2002, E.A.No.422 of 2002 is not maintainable in law. Further, this Court opines that when the revision petitioner/third party is not a party to the suit in O.S.No.54 of 2000 on the file of the learned Subordinate Judge, Padmanabhapuram, leading to the sale, then, it can sue for a declaration that the decree and sale will not bind it and it will not be proper for the revision petitioner to seek the remedy of setting aside the sale as per the decision in Lakshmikutty Amma Retnamma v. P.N.Krishna Pillai and others reported in AIR 1992 KERALA 373.
33. In the light of the detailed discussions mentioned supra and on overall assessment of the facts and attendant circumstances of the case, the civil revision petition fails and the same is dismissed leaving the parties to bear their own costs. Consequently, the connected Miscellaneous Petition is dismissed. It is open to the civil revision petitioner to work out the remedy for a declaratory relief that the decree obtained in O.S.No.54 of 2000 on the file of the learned Subordinate Judge, Padmanabhapuram, and the sale held on 21.11.2001, will not bind on it, if so advised, in accordance with law.
rsb To
1.The District Judge, Kanyakumari, at Nagercoil.
2.The Subordinate Judge, Padmanabhapuram.