Madras High Court
Raja vs Muthapillai(Died) on 31 January, 2023
CRP.No.1235 of 2016
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 31.01.2023
CORAM:
THE HONOURABLE MR. JUSTICE G.K.ILANTHIRAIYAN
CRP.No.1235 of 2016 and
CMP.No.6742 of 2016
Raja ... petitioner
Vs.
1.Muthapillai(died)
2.Kaliyamurthy
3.Devaki
4.Aivazhagan(died)
5.Amutha
6.Kavitha
7.Minor A.Eswari
Rep. By guardian/next friend Mother-Kavitha
8.minor A.Thirumalaiarasu
Rep. By guardian/next friend Mother-Kavitha
(R3 to 5 brought on record as LR's of the deceased R1
vide court order dated 21.06.2021 made in CMP.No.
5722 of 2021 in CRP.No.1235 of 2016)
(R6 to 8 brought on record as LR's of the deceased
R4 Viz., Arivazhagan vide court order dated 08.12.2022
in CMP.Nos.11295, 11297 of 2022 in
CRP.No.1235 of 2016) ... Respondents
PRAYER:
Civil Revision Petition filed under Section 115 of CPC to set aside the fair
and decretal order dated 18.03.2016 made in EA.No.25 of 2015 in EP.No.106 of
2007 in OS.No.79 of 2005 on the file of the learned Sub Court, Kallakurichi by
allowing this civil revision petition.
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CRP.No.1235 of 2016
For Petitioner : Mr.N.Manokaran
For Respondents
For R3 & 5,
6 to 8 : Mr.V.Gunasekar
ORDER
This civil revision petition has been filed to set aside the fair and
decretal order dated 18.03.2016 made in EA.No.25 of 2015 in EP.No.106 of 2007
in OS.No.79 of 2005 on the file of the learned Sub Court, Kallakurichi, thereby
allowed the petition and set aside the sale in favour of the petitioner herein.
2. The second respondent filed suit for recovery of money against the
first respondent herein on the strength of the pronote executed by him. It was
decreed by the judgment and decree dated 03.04.2007. On the strength of the
decree passed in OS.No.79 of 2005, the decree holder filed execution petition in
EP.No106 of 2007 as against the first respondent herein. While pending the
execution petition, the judgment debtor filed appeal suit along with condone delay
petition in IA.No.38 of 2008 and the same was dismissed for default. In order to
restore the condone delay petition, the judgment debtor filed another application in
IA.No.175 of 2009 and the same was also dismissed. Aggrieved by the same, the
judgment debtor preferred appeal in CMA.No.1833 of 2010 and the same was
allowed on payment of cost of Rs.3,000/-. However, the cost was not paid and as
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CRP.No.1235 of 2016
such, the appeal was also dismissed. Therefore, in the execution petition, the suit
property was subjected for auction sale on 21.11.2012. The petitioner is being the
highest bidder, purchased the property. He had deposited the entire sale price by
two instalments. Accordingly, on 22.11.2012, he had paid a sum of Rs.1,73,990/-
and on 26.11.2012, he paid the remaining sale consideration of Rs.6,56,330/-. The
judgment debtor challenged the sale in the civil revision petition before this Court in
CRP.No.4509 of 2012 and this Court dismissed the civil revision petition and
observed that the sale cannot be set aside since already the auction purchaser had
deposited the entire sale consideration in the execution petition. Further observed
that the judgment debtor is at liberty to work out his remedy before the execution
court by filing an appropriate application in accordance with law.
2.1 Utilising the said observation, the judgment debtor again filed another
application under Section 47 of CPC to set aside the sale dated 21.11.2012. The
execution court converted the said application into application under Order 21 Rule
89 of CPC for the reason that the decree amount should be deposited within a
period of 60 days as contemplated under Order 21 Rule 92 sub clause (2) of CPC.
Therefore, the application filed under Section 47 of CPC is not barred by limitation
and converted into application under Order 21 Rule 89 of CPC. Further, at the time
of the interim order passed by this Court in CRP.No.4509 of 2012, imposed
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CRP.No.1235 of 2016
condition to deposit a sum of Rs.1,96,462/-. Accordingly, the judgment debtor had
deposited the said amount on 10.01.2013. After converting the application filed
under Section 47 of CPC into application under Order 21 Rule 89 of CPC, the
execution court set aside the sale and allowed the said application on condition that
the judgment debtor shall deposit 5% of the sale price into court on or before
18.04.2016. Aggrieved by the same, the present civil revision petition has been
filed.
3. The learned counsel for the petitioner would submit that the
application which was filed under Section 47 of CPC cannot be converted into
application under Order 21 Rule 89 of CPC since the application filed under
Section 47 of CPC itself is impermissible in law and it is clear violation of the
order passed by this Court in CRP.No.4509 of 2012, thereby confirmed the auction
sale dated 21.11.2012. This Court, while dismissing the civil revision petition,
observed that the judgment debtor is at liberty to approach the execution court for
appropriate relief in order to withdraw the said amount. Unfortunately, the
judgment debtor wrongly construed the order observed by this Court and again
filed application under Section 47 of CPC to challenge the auction sale. The
application filed under Section 47 of CPC is clearly barred under Order 21 Rule
90(3) of CPC. No application to set aside a sale shall be entertained upon any
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CRP.No.1235 of 2016
ground which the applicant could have taken on or before the date on which the
proclamation of sale was drawn. After confirmation of sale, the only remedy
available to the judgment debtor is only to file an application under Order 21 Rule
89 of CPC within a period of 60 days. Admittedly, the present application has been
filed after two years from the date of the sale and as such, it cannot be converted
into application under Order 21 Rule 89 of CPC.
4. Heard, the learned counsel for the petitioner and the learned counsel
for respondents 3, 5 & 6 to 8.
5. The petitioner is the auction purchaser. The first deceased respondent
was the judgment debtor. He lost his appeal remedy as against the money decree
obtained by the decree holder and challenged the auction sale before this Court in
CRP.No.4509 of 2012 and this Court dismissed the civil revision petition and
confirmed the auction sale by an order dated 12.08.2014. While admitting the civil
revision petition, this Court granted interim order on condition that the judgment
debtor shall deposit a sum of Rs.1,96,462/-. Accordingly he had deposited the said
amount on 10.01.2013. However, the civil revision petition was dismissed by this
Court and confirmed the auction sale and observed that the judgment debtor is at
liberty to approach the execution court by an appropriate application. Once the sale
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CRP.No.1235 of 2016
was challenged by the judgment debtor before this Court and the same was
confirmed, he is estopped from challenging the auction sale once again by way of
application under Section 47 of CPC. The court below converted the said
application into application under Order 21 Rule 89 of CPC on the ground that the
judgment debtor had deposited the entire decree amount within a period of 60 days
from the date of the auction sale before the execution court.
6. The application under Section 47 of CPC itself is barred under Order
21 Rule 90(3) of CPC. It is clear that no application to set aside a sale under this
rule shall be entertained upon any ground which the applicant could have taken on
or before the date on which the proclamation of sale was drawn out. In fact, the
judgment debtor never raised any objection at the time of auction. After
confirmation of the auction sale, remedy open to him is only under Order 21 Rule
89 or Rule 90 of CPC. The application filed under Section 47 of CPC cannot be
converted into Order 21 Rule 90 of CPC. In this regard, the learned counsel for the
petitioner relied upon the Full Bench Judgment of this Court in the case of
A.P.V.Rajendran Vs. S.A.Sundararajan and others reported in 1980 AIR
(Madras) 123, wherein it is held as follows:
13. It is true, the above decisions lay down that where the
court sales are challenged as invalid for want of notice under
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CRP.No.1235 of 2016
Rule 22 or Rule 66 of order 21 C.P.C, or other illegalities, the
challenge has to be considered only under section 47 and not
under 0.21,R.90 C. P. C. Whether Or not that failure to give
notice is an illegality In a matter, which in entirely irrelevant
for the present purpose, because it is only certain kinds of
irregularities that are covered by Order 21, Rule 90 C. P. C.
and if the C. P. C. omission is of any other kind of irregularity
not covered by Order 21, Rule 90 C. P. C., whether it renders
the whole sale a nullity or not, It is not brought within the
wording of that rule. Though Section 47 is very wide in Its
terms and in one sense all questions relating to the execution,
discharge or satisfaction of the decree that arise between the
decree holder and the judgment-debtor are within the purview
of that section, nevertheless that section ought to be so
interpreted as not to render redundant the other provisions
contained in the Code, particularly Rules 89, 90 and 91of
Order 21, and as between the Judgment-debtor and the decree-
holder only such applications to set aside an auction purchase
made by the decree-holder as do not come within the purview
of Rules 89, 90 and 91 of Order 21 are within the scope of
Section 47 of the Code .Not withstanding the wording
of Section 47 which is enough to cover all applications to set
aside sales on the ground either of illegality or of irregularity,
its scope has naturally to be restricted so as to give due effect
to Order 21, Rule 90 C. P. C. Thus, if the sale is sought to be set
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CRP.No.1235 of 2016
aside on the ground of material irregularity in publishing and
conducting the sale within Section 47 cannot come into play at
all, and the sale could be set aside only by invoking Order 21,
Rule 90. But if the sale is claimed to be void for certain
illegality or avoidable on ground of material irregularities not
referred to in 0. 21, Rule 90 then Section 47 has to be invoked
and in such cases Order 21, Rule 90, C. P. C. cannot come into
Play at all.
14. Thus the main question to be considered in this case
is whether the defect or irregularity in the preparation and
settlement of sale proclamation is an irregularity in publishing
and conducting the sale within the meaning of Order 21, Rule
90, C. P. C. even though the appellant has purported to file an
application for setting aside the sale under Sec. 47, as
contended by the learned counsel for the appellant. The defects
or irregularities alleged by the respondent in his application
for setting aside the sale related mainly to the dawning up of
the sale proclamation and they are (1) certain payments made
earlier had not been given credit to while mentioning the
amount due; (2) the sale proclamation did not contain neither
place and the date of auction nor did it contain the quantum of
taxes payable on the property and (3) the upset price for lot I
had been improperly reduced. These defects have been found
to exist by the lower court and the sale has been set aside only
on these grounds. In this case, the defects found proved relate
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to matters which are to be set out in the sale proclamation and
which are covered by Rule 66 of Order 21.
7. In the above case, originally the petition was filed under Order 21
Rule 90 of CPC and thereafter it was converted into application under Section 47
of CPC. From the above, it is clear that the judgment debtor cannot escape the
period of limitation by framing his application as one under Order 21 Rule 90 of
CPC.
8. Further, the application under Section 47 of CPC is also not
maintainable. In order to challenge the auction sale, which was already confirmed
by this Court, the provision under Section 47 of CPC mandates determination by an
execution court, questions arising between the parties or their representatives
relating to the execution, discharge or satisfaction of the decree and does not
contemplate any adjudication beyond the same. The purview of scrutiny under
Section 47 of the CPC qua a decree is limited to objections to its executability on
the ground of jurisdictional infirmity or voidness are plethoric. Therefore, the
executing court 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. Unless it is set aside
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CRP.No.1235 of 2016
by an appropriate proceeding in appeal or revision, a decree even if it be erroneous
is still binding between the parties. Therefore, the execution court ought not to have
converted the application filed under Section 47 of CPC into application under
Order 21 Rule 89 of CPC since it is clearly barred by limitation. That apart, the
judgment debtor failed to deposit the entire sale price, a sum equal to 5% of the
purchase money as per the mandate of Order 21 Rule 89 sub clause (1) of CPC
within the stipulated period of one month from the date of sale i.e. 21.11.2012.
After dismissal of the civil revision petition by this Court in CRP.No.4509 of 2012
and thereby confirmed the auction sale, the pending of the civil revision petition
cannot extend the period of limitation as required under Order 21 Rule 89 of CPC.
9. In view of the above, this Court finds infirmity in the order passed by
the court below and the same is liable to be set aside. Accordingly, the fair and
decretal order dated 18.03.2016 made in EA.No.25 of 2015 in EP.No.106 of 2007
in OS.No.79 of 2005 on the file of the learned Sub Court, Kallakurichi is set aside
and this civil revision petition is allowed. Consequently, connected miscellaneous
petition is closed. There shall be no order as to costs.
31.01.2023
Speaking/non-speaking
Index : Yes/No
Internet : Yes
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CRP.No.1235 of 2016
lok
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CRP.No.1235 of 2016
G.K.ILANTHIRAIYAN, J.
lok
To
The learned Sub Court,
Kallakurichi
CRP.No.1235 of 2016
https://www.mhc.tn.gov.in/judis
CRP.No.1235 of 2016
31.01.2023
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