Moideen Mansoor vs Mubarak Nisha
2021 Latest Caselaw 23567 Mad

                                                                          C.R.P.(MD) No.2353 of 2019



                       BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                              DATED : 01.12.2021

                                                    CORAM

                                   THE HONOURABLE MS.JUSTICE P.T.ASHA

                                          C.R.P(MD)No.2353 of 2019
                                                   and
                                         C.M.P(MD) No.12432 of 2019

                     Moideen Mansoor                                        ... Petitioner

                                                    Vs.

                     1.Mubarak Nisha

                     2.Habbeb Nisha

                     3.Shanmugaraj

                     4.Ajmalkhan

                     Asiyabeevi (died)

                     5.Ashifkhan                                      ... Respondents


                     PRAYER:- Civil Revision Petition filed under Section 115 of Code of
                     Civil Procedure, to set aside the fair order and decreetal order dated
                     17.11.2019 in E.A (Unnumbered) of 2019 in E.A.No.36 of 2008 in
                     E.P.No.54 of 2008 passed by the Subordinate Judge, Theni in O.s.No.
                     214 of 2004 on the file of Subordinate Judge, Periyakulam.

                     _________
                     Page 1 of 6
https://www.mhc.tn.gov.in/judis
                                                                                C.R.P.(MD) No.2353 of 2019



                                              For Petitioner      : Mr.M.P.Senthil

                                              For Respondents     : Mr.H.Lakshmi Shankar


                                                           ORDER

The auction purchaser has taken out an application to decide the

maintainability of the application filed by the respondents 1 and 2 under

Order 21 Rule 90 CPC as a preliminary issue. This petition was

dismissed by the learned Subordinate Judge, Theni, without numbering

the same and after hearing the counsel for the petitioner.

2.It appears that the third respondent herein had filed a suit in

O.S.No.214 of 2004 on the file of the Sub Court, Periyakulam, for

recovery of a sum of Rs.1, 89,946.65/- together with interest on a sum of

Rs.1,40,000/-. The defendant therein who is the father of the respondents

1 and 2 (claim petitioners) and the respondents 4 and 5 had remained

ex parte and an ex parte decree came to be passed. Thereafter, the decree

holder had filed E.P.No.54 of 2008 to bring the property of the defendant

to sale. When the Execution Petition was filed, the defendant had died.

_________

https://www.mhc.tn.gov.in/judis C.R.P.(MD) No.2353 of 2019

Therefore, the respondents 4 to 6 were brought on record, however,

respondents 1 and 2 have not been brought on record. The decree holder

sought to have the property sold as the same had been attached before the

judgment in O.S.No.214 of 2004, wherein the ex parte decree came to be

passed. The property was brought to sale and in the auction purchase,

the fifth defendant who is none other than the brother in law of the fourth

respondent, has purchased the property and the claim petitioners who are

the daughters on coming to know about this proceedings and the sale of

the property, had filed E.A.No.36 of 2008 under Order 21 Rule 10 CPC

to set aside the auction.

3.In the affidavit filed in support of the said petition, they have

set out as to how the entire sale and the execution proceedings itself, was

a collusive one and made with an intent to grab the property of

Abdul Kareem. It was their categoric case that their father was kept in

the dark about the suit and the property worth several crores has been

sold for meeting a decree, which could easily have been paid of by the

claimants or by the respondents 4 to 6. That apart, the fourth respondent

_________

https://www.mhc.tn.gov.in/judis C.R.P.(MD) No.2353 of 2019

has ensured that the property is purchased by his brother-in-law which

would clearly prove the intent of the respondents. While the said petition

is pending, the auction purchaser has come forward with the impugned

petition to raise the issue of maintainability of E.A.No.36 of 2008. The

petition under Order 21 Rule 90 CPC has been filed as early as in the

year 2008 and the present application has been filed 11 years later.

4.The learned counsel for the respondents would submit that now

the petition is at the stage of the Advocate Commissioner filing his report

regarding the valuation of the property.

5.In these circumstances, this Court does not deem it fit to interfere

with the order passed by the learned Subordinate Judge, Theni.

Accordingly, this Civil Revision Petition is dismissed. No costs.

Consequently, connected miscellaneous petition is closed.

01.12.2021 Index :Yes/No Internet :Yes/No

_________

https://www.mhc.tn.gov.in/judis C.R.P.(MD) No.2353 of 2019

Note : In view of the present lock down owing to COVID-19 pandemic, a web copy of the order may be utilized for official purposes, but, ensuring that the copy of the order that is presented is the correct copy, shall be the responsibility of the advocate/litigant concerned.

To:-

1.The Subordinate Judge, Theni.

2.The Subordinate Judge, Periyakulam.

_________

https://www.mhc.tn.gov.in/judis C.R.P.(MD) No.2353 of 2019

P.T.ASHA, J.

cp

C.R.P(PD) (MD)No.2353 of 2019

01.12.2021

_________

https://www.mhc.tn.gov.in/judis