Madras High Court
Chinnamani vs Dhanalakshmi Finance ... on 18 February, 2021
C.M.S.A.No.9 of 1998
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 18.02.2021
CORAM
THE HON'BLE MR.JUSTICE S.M.SUBRAMANIAM
C.M.S.A.No.9 of 1998
and
C.M.P.Nos.3335 & 3336 of 1998
Chinnamani ..Appellant
Vs.
1.Dhanalakshmi Finance Corporation,
rep.by its Managing Partner K.Vijayakumar
S/o.K.G.Krishnasamy Chettiar
27, New Majjit Street,
Polur, Tiruvannamalai District.
2.T.Rajan Pillai
3.J.Saraswathi
4.Dr.Sureka
5.Manjula ..Respondents
Prayer : Civil Miscellaneous Second Appeal filed under Section 100 &
108 of Code of Civil Procedure against the judgment and decree on the
file of the Court of the Additional District Judge, Tiruvannamalai in
confirming the fair and final order dated 01.09.1992 passed in
1/8
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C.M.S.A.No.9 of 1998
E.A.No.488 of 1981 in R.E.P.No.131 of 1979 in O.S.No.97 of 1976 on
the file of the Principal District Munsif Court, Tiruvannamalai.
For Appellant : Mr.P.Mani
For Respondents : No appearance for R1
Mr.T.R.Raja Raman for R2
R3 to R5 – Batta due
JUDGMENT
The judgment and decree dated 19.12.1997 passed in C.M.A.No.
36 of 1997 confirming the fair and decreetal order dated 01.09.1992
passed in E.A.No.488 of 1981 in R.E.P.No.131 of 1979 in O.S.No.97 of
1976, is under challenge in the present Civil Miscellaneous Second
Appeal.
2.The substantial questions of law raised by the appellant reads as
under:
“A.Whether in law the appellant is entitled to ½
share in the property sold as per the partition deed dated
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C.M.S.A.No.9 of 1998
12.02.1963 and the Court auction sale is liable to be set
aside in so far as the appellant's ½ share when admittedly
the judgment debtor's right to the property accrued only
through the said partition deed?
B.Whether in law the flaw in the attachment of the
property vitiates the sale and whether the court auction
sale could be set aside on this ground as per the dicta laid
down by this Hon'ble Court in Kamatchi Ammal vs. N.Babu
and another (C.N.S.A.No 57 of 1985 dated 19.11.1997)?
C.Whether the application filed by the appellant to
set aside court auction sale under Order 21 Rule 90 is
barred by limitation when the appellant is a third party and
entitled to half share in the property sold and when Art.
136 of the Limitation Act 1963 is applicable to the facts of
the present case?”
3. Though the substantial questions of law raised in A & B are
relatable to the factual matrix of the case, the learned counsel for the
appellant reiterated that the point of limitation decided by both the
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C.M.S.A.No.9 of 1998
Courts are erroneous. The appellant filed a petition under Order 21 Rule
90 C.P.C to cancel the auction sale. The Trial Court considered the facts
and circumstances and arrived a finding that no illegality or irregularity
as alleged by the appellant has occurred in the Court auction sale and
further the petition itself was filed belatedly and accordingly there was
no irregularity regarding the auction and dismissed the petition.
4. The appellant preferred C.M.A.No. 36 of 1997 and the first
Appellate Court elaborately adjudicated the facts and circumstances.
The fact remains that the petitioner has filed a petition under Order 21
Rule 90 C.P.C. which is barred by limitation. Though, the Court auction
sale was held on 23.01.1980, the appellant has filed the petition only on
24.03.1980, thus the petition is barred by the limitation.
5. The first Appellate Court considered the manner through which
the period is to be reckoned for calculating limitation even on merits.
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C.M.S.A.No.9 of 1998
The first Appellate Court arrived a conclusion that the contention of the
appellant is unacceptable, even recording the point that no notice was
issued for attachment before the judgment. The first Appellate Court
considered with reference to Order 38 Rule 5 C.P.C., the lower Court
without giving notice to the third respondent, before the first Appellate
Court, has attached the property mentioned in the schedule before the
judgment. The sale held on 23.01.1980, is liable to be set aside
accordingly. The first Appellate Court found that the Trial Court had
issued notice to the third respondent on 22.02.1976 but attachment
before judgment was made only on 03.12.1976. Thus, the Court cannot
come to the conclusion that without giving notice to the third
respondent, the Trial Court has effected attachment before judgment
6. Accordingly, the first Appellate Court considered the
explanation provided under 21 Rule 90 C.P.C wherein it is stipulated as
“the mere absence of or defeat in attachment of the property sold shall
not by itself be a ground for setting aside a sale under this rule”.
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C.M.S.A.No.9 of 1998
7. Relying on the facts and circumstances, the first Appellate
Court arrived a conclusion that the appellant is having half share in the
property mentioned in the schedule and therefore, the appellant has no
hesitation to question the same.
8. This Court is of the considered opinion that the attachment
before the judgment was made on 03.12.1976 and the Court auction sale
was held on 23.01.1980 and the Trial Court and the First Appellate
Court confirmed the same on 01.09.1992 and 19.12.1997 respectively.
Almost 40 years had lapsed from the date of Court auction sale.
9. Under these circumstances, this Court is not inclined to
consider the case of the appellant and accordingly the judgment and
decree dated 19.12.1997 passed in C.M.A.No.36 of 1997 confirming the
judgment and decree dated 01.09.1992 passed in E.A.No.488 of 1981 in
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C.M.S.A.No.9 of 1998
R.E.P.No.131 of 1979 in O.S.No.97 of 1976 stands confirmed.
Consequently, C.M.S.A.No.9 of 1988 stands dismissed. No costs.
Consequently, connected miscellaneous petitions are closed.
18.02.2021
Pns
Index: Yes/No
Internet:Yes/No
Speaking order/Non speaking order
To
1. The Additional District Judge, Tiruvannamalai.
2. The Principal District Munsif Court, Tiruvannamalai.
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C.M.S.A.No.9 of 1998
S.M.SUBRAMANIAM, J.
Pns
C.M.S.A.No.9 of 1998
18.02.2021
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