Madras High Court
Kalivarathan vs Ezhilarasi on 28 July, 2021
CRP.NPD.No.2723 of 2018
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 28.07.2021
CORAM
THE HON'BLE MR. JUSTICE G.K.ILANTHIRAIYAN
CRP.NPD.No.2723 of 2018
and
CMP.No.16040 of 2018
Kalivarathan ..Petitioner
Vs.
1.Ezhilarasi
2.T.S.Chelladurai
3.B.Varadhan ..Respondents
PRAYER:
The Civil Revision Petition is filed under Article 227 of the
Constitution of India against the order passed in unnumbered EA.No.
of 2018 in EA.No.236 of 2008 in EP.No.109 of 2006 dated 02.08.2018
on the file of Additional Sub Judge at Puducherry.
For Petitioner : Mr.C.B.Muralikrishnan
For Respondents
For R1 : Mr.V.G.Sureshkumar
R2 & 3 : No appearance
1/6
https://www.mhc.tn.gov.in/judis/
CRP.NPD.No.2723 of 2018
ORDER
This Civil Revision Petition is filed against the order passed in
unnumbered EA.No. of 2018 in EA.No.236 of 2008 in EP.No.109 of
2006 dated 02.08.2018 on the file of Additional Subordinate Judge at
Puducherry, thereby dismissing the petition seeking dismissal of the
execution petition without numbering the same.
2. The second respondent herein filed suit for recovery of money
and in default permit the second respondent to apply for final decree
for sale of the mortgaged property for realisation of the amount
determined by the trial court. The said suit was decreed in favour of
the second respondent herein. On the strength of the decree, the
second respondent filed execution petition in EP.No.109 of 2006. The
property was brought for sale on 31.01.2008 and on the said day, the
first respondent herein purchased the said property for valid sale
consideration in the court auction. The said sale was confirmed on
10.04.2008 and the sale certificate was issued in favour of the first
respondent on 22.04.2008. EP was pending for delivery of possession
of the said property. There was obstruction while taking the delivery
and as such the first respondent filed petition for removal of
obstruction in IA.No.117 of 2018. By order dated 06.06.2018, the
same was allowed and in pursuant to the said order, the possession of
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CRP.NPD.No.2723 of 2018
the said property was also delivered in favour of the first respondent
and thereafter, EP was also terminated. At that juncture, the petitioner
filed petition praying to enquire the independent right of the petitioner
/ third party obstructor with respect of the said property and to
dismiss the execution petition.
3. On perusal of the affidavit filed in support of the said petition,
revealed that the petitioner entered into agreement for sale with the
third respondent herein on 07.07.2004 for the total sale consideration
of Rs.10,00,000/-, in which the petitioner paid a sum of Rs.2,00,000/-
as an advance. Thereafter, he also paid a sum of Rs.5,00,000/- to the
third respondent on 10.09.2007 and the same was duly endorsed in
the backside of the agreement for sale. Due to his illness, the
agreement for sale could not be materialised and on 31.12.2012, the
third respondent executed sale deed in favour of him by the registered
sale deed vide document No.8435 of 2012 at the Office of the Sub
Registrar, Villianur, Puducherry. Further stated that the suit filed by
the second respondent is a collusive one with the third respondent and
obtained decree. On the strength of the decree, sale deed was also
executed in favour of the first respondent in the court auction sale. In
fact, the petitioner also verified the encumbrance certificate and does
not find any sale deed in favour of the first respondent herein.
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CRP.NPD.No.2723 of 2018
Therefore, he filed petition and the same was dismissed without even
numbering the same.
4. The court below dismissed the same for the reason that the
alleged transaction between the petitioner and the third respondent is
hit by principle of lis pendens. That apart, the judgment was passed in
OS.No.264 of 2005 and it is binding upon the petitioner also. If it is
collusive decree obtained by the second respondent with the third
respondent, the third respondent ought not to have executed sale
deed on 31.12.2012 in favour of the petitioner. Therefore, only to
create further encumbrance to the said property, the alleged sale deed
was executed on 31.12.2012 in favour of the petitioner. As stated
supra, in the court auction sale, the first respondent purchased the
said property and the same was confirmed. Thereafter, sale certificate
was issued on 22.04.2008 and the delivery of possession was taken
over and the first respondent is in possession and enjoyment of the
said property. Therefore, no right accrued to the petitioner herein to
file the present petition. As such, the court below rightly dismissed the
petition and this Court finds no infirmity or illegality in the order
passed by the court below.
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CRP.NPD.No.2723 of 2018
5. Accordingly, this civil revision petition is dismissed.
Consequently, connected miscellaneous petition is closed. No order as
to costs.
28.07.2021
Speaking/Non-speaking order
Index : Yes/No
Internet : Yes/No
lok
To
The Additional Subordinate Judge,
Puducherry.
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CRP.NPD.No.2723 of 2018
G.K.ILANTHIRAIYAN,J.
lok
CRP.NPD.No.2723 of 2018
28.07.2021
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