Madras High Court
Umasankar vs R.Sankaranarayanan on 9 December, 2022
CRP(MD)No.2449 of 2022
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 09.12.2022
CORAM:
THE HONOURABLE MR.JUSTICE B.PUGALENDHI
CRP(MD)No.2449 of 2022
Umasankar : Petitioner
Vs.
1.R.Sankaranarayanan
2.Esakkiammal : Respondents
PRAYER: Civil Revision Petition filed under Article 227 of the Constitution of
India to direct the Sub Court, Sankarankovil, to number the petition dated
26.10.2022 filed under Order 21 Rule 89 CPC in E.P.No.43 of 2015 in O.S.No.203
of 2013 to set aside the sale conducted on 22.08.2022 and dispose of the same.
For Petitioner : Mr.M.Jothi Basu
*****
ORDER
This revision petition is filed by the petitioner / judgment debtor as against
the return endorsement made by the learned Subordinate Judge, Sankarankovil /
Execution Court, on his application filed under Order 21 Rule 89 CPC.
https://www.mhc.tn.gov.in/judis
CRP(MD)No.2449 of 2022
2.The petitioner has filed an execution application in E.P.No.43 of 2015 in
O.S.No.203 of 2013 to set aside the sale conducted on 22.08.2022, on the ground
that he is prepared to deposit the decree amount. The Execution Court returned the
application on 26.10.2022, with the following endorsement:
“Already sale notice served to this petitioner / respondent
properly about sale amount. Hence, how this petition is maintainable
under Order 21 Rule 90(3) CPC, as the petitioner can take the ground
before proclamation of sale. Hence returned.”
The petitioner re-presented the papers on 03.11.2022, by correcting the provision
as Order 21 Rule 90 CPC, instead of Order 21 Rule 89 CPC. Thereafter, the
Execution Court returned the papers on the same day, with the following
endorsement:
“1.Advocate sign not made in re-presentation.
2.Sale notice served to the respondent already. Sale also
confirmed. Hence, how this petition is maintainable at this stage. Hence
returned.”
The petitioner re-presented the papers on 04.11.2022, stating that the petition was
filed even before the confirmation of sale. However, the Execution Court has
again returned the papers on 04.11.2022. Hence, the petitioner has moved the
instant revision petition.
https://www.mhc.tn.gov.in/judis
CRP(MD)No.2449 of 2022
3.Learned Counsel for the petitioner submitted that the suit property was
auctioned for a lesser amount of Rs.17,09,000/-. The petitioner conducted a
private negotiation and has entered into an agreement with one Gopalakrishnan
S/o.Senthilvel, wherein, the said Gopalakrishnan undertook to purchase the suit
property for a sum of Rs.40,00,000/- and also to deposit the decree amount before
the Court. Along with this agreement, the petitioner has filed the execution
application within the period of limitation, however, by quoting the wrong
provision as Order 21 Rule 90 CPC, instead of Order 21 Rule 89 CPC. Therefore,
the application was returned and thereafter, the same was also rectified and re-
presented by the petitioner. Even then, the Court has returned the papers.
4.By relying upon the decision of this Court in Selvaraj and Others v.
Koodankulam Nuclear Power Plant India Ltd., and Others, reported in 2021 (4)
CTC 539, the learned Counsel contended that before making repeated returns, the
learned Judge ought to have listed the matter in the open Court and heard him.
5.This Court paid it's anxious consideration to the submissions made by the
petitioner's Counsel and also to the materials placed on record.
https://www.mhc.tn.gov.in/judis
CRP(MD)No.2449 of 2022
6.The petitioner / judgment debtor has filed an application under Order 21
Rule 89 CPC along with an unregistered agreement entered into between him and
one Gopalakrishnan S/o.Senthivel, wherein, the said Gopalakrishnan undertook to
purchase the suit property for a sum of Rs.40,00,000/- and also to deposit the
decree amount before the Court. It is the grievance of the petitioner that the
property was auctioned for a lesser amount of Rs.17,09,000/- and therefore, he
prayed for setting aside the sale. However, this application was returned and in the
meantime, the sale was confirmed.
7.In the decision relied upon by the learned Counsel for the petitioner in
Selvaraj's case (supra), this Court, following the decision in S.Parameswari v.
Denis Lourdusamy [(2011) 5 CTC 742], held that after one return, the Court
should post the matter in the open Court and invite the arguments of the Counsel
on the question of maintainability and thereafter, pass a judicial order. The duty to
hear before a decision is made constitutes the soul of procedural fairness inbuilt in
the Civil Procedure Code and cannot be compromised. The relevant portion from
the said decision is extracted as follows:-
“30. In S. Parameswari v. Denis Lourdusamy, [(2011) 5 CTC
https://www.mhc.tn.gov.in/judis
CRP(MD)No.2449 of 2022
742], this Court had held that after one return, the Court should post
the matter in open Court, and invited arguments of the counsel on the
question of maintainability and pass a judicial order. If the objection is
upheld, the aggrieved party could work out his/her rights. In
Muthuganesah v. Thillaimani, [2016- 2- LW 340], this Court had
pointed out:
“3.The court, while admitting the plaint, can scrutinise
the other aspects, namely the cause of action, valuation,
payment of court fee, jurisdiction and limitation. The court
can also verify whether the plaint has been filed in the proper
form and whether the necessary requirements of plaint have
been complied with. The question as to whether any other
person should have been made a party is outside the purview
of the scrutiny of the trial court at the time of admitting the
plaint. The above said aspects are with reference to the merits
of the return made by the trial court.
4. Once certain defects are pointed out by the court and
the plaint is returned and the plaintiff or plaintiffs, re-present
the same stating that the plaint has been properly prepared
and filed and asking the court to hear regarding the necessity
to comply with the returns made by the court, the court can
return the plaint provided its view that the compliance with
the returns are mandatory and it is conceded by the plaintiff.
If the plaintiff makes it clear that he is not prepared to comply
with the returns and the plaint as filed by him should be taken
https://www.mhc.tn.gov.in/judis
CRP(MD)No.2449 of 2022
on file, the trial court should reject the plaint rather than
returning the plaint stating the very same reason.”
This Court only adds a rider to it: In all cases where the Court
chooses to reject the plaint for not curing the defects mentioned (which
may include the issue on exclusion of jurisdiction) it is necessary for the
Court to follow the dictum in S. Parameswari v. Denis Lourdusamy,
[(2011) 5 CTC 742] and post the matter before Court, with or without
the request of the plaintiff or the counsel concerned, and hear them. The
duty to hear before a decision is made constitutes the soul of procedural
fairness inbuilt in the Civil Procedure Code, and cannot be
compromised.”
Therefore, the Execution Court ought to have listed the matter in the Open Court
and heard the arguments of the petitioner's Counsel on the question of
maintainability.
8.As per Article 127 of the Limitation Act, an application to set aside a sale
in execution of a decree, including any such application by a judgment debtor, has
to be filed within a period of 60 days from the date of sale. In the case on hand, the
sale was confirmed in favour of a third party on 22.08.2022. Therefore, the period
of limitation ends by 21.10.2022. After the Deepavali Holidays from 21.10.2022 to
25.10.2022, the Courts were re-opened on 26.10.2022, on which date, the
https://www.mhc.tn.gov.in/judis
CRP(MD)No.2449 of 2022
petitioner has filed the execution application to set aside the sale. Though the
application was not numbered and was returned on 26.10.2022 itself, the fact
remains that the petitioner has filed this application well within the period of
limitation.
9.As per Order 21 Rule 92 CPC, a sale shall become absolute, where no
application is made under Order 21 Rules 89, 90 or 91 CPC within the limitation
period. Here, the petitioner has made the application under Order 21 Rule 89 CPC
within the limitation period, however, by referring a wrong provision. Though the
petitioner has rectified and re-presented the papers, it was returned, again and
again, stating that the sale was confirmed.
10.Considering the fact that the petitioner has moved the application under
Order 21 Rule 89 CPC well within the period of limitation as required under Order
21 Rule 92 CPC and also taking note of the decision of this Court in Selvaraj's
case (supra), this Court is passing the following order:-
i) The Execution Court shall take up the execution application filed by the
petitioner under Order 21 Rule 89 CPC and shall decide the same, on merits and in
accordance with law, within a period of two months from the date of receipt of a
https://www.mhc.tn.gov.in/judis
CRP(MD)No.2449 of 2022
copy of this order. The auction purchaser shall also be put on notice before passing
any orders.
ii) Till such time, the sale proceedings conducted on 22.08.2022 shall be
kept under abeyance.
iii) The confirmation of sale, even if already made, is subject to the order to
be passed by the Execution Court in the application filed by the petitioner under
Order 21 Rule 89 CPC.
With the above observations and directions, this civil revision petition
stands disposed of. There shall be no order as to costs.
Index : Yes / No 09.12.2022
Internet : Yes
gk
To
The Subordinate Judge,
Sankarankovil.
https://www.mhc.tn.gov.in/judis
CRP(MD)No.2449 of 2022
B.PUGALENDHI, J.
gk
CRP(MD)No.2449 of 2022
09.12.2022
https://www.mhc.tn.gov.in/judis
