Madras High Court
T.Suresh vs Sathaian on 17 July, 2023
C.R.P(MD)No.2243 of 2022
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 17.07.2023
CORAM
THE HONOURABLE MRS JUSTICE K. GOVINDARAJAN
THILAKAVADI
C.R.P(MD)No.2243 of 2022
and
C.M.P(MD)No.10497 of 2022
1.T.Suresh
2.T.Kasthuri ... Petitioners/Respondents 2,4/
Judgment Debtor 2,3/Defendants 2,3
Vs.
1.Sathaian ... Respondent/Petitioner/
Auction Purchaser
2.K.Suyambulingam ... Respondent/3rd Respondent/
Decree Holder/Plaintiff
Civil Revision Petition is filed under Section 115 of the Code of Civil
Procedure, to set aside the docket order dated 14.09.2022 in E.A.No.6 of
2022 in E.P.No.5 of 2011 in O.S.No.103 of 2006 on the file of the I
Additional Subordinate Judge, Nagercoil.
For Petitioners :Mr.Raguvaran Gopalan
For R1 :Mr.J.Sulthan Basha
For R2 :Mr.T.Selvakumaran
1/6
https://www.mhc.tn.gov.in/judis
C.R.P(MD)No.2243 of 2022
ORDER
The petitioners, who are the judgment debtors, have preferred this
civil revision petition as against the order dated 14.09.2022 passed in
E.A.No.6 of 2022 in E.P.No.5 of 2011 in O.S.No.103 of 2006 by the I
Additional Subordinate Judge, Nagercoil.
2.According to the learned counsel appearing for the revision
petitioners/defendants 2 and 3, they are suffered decree passed in O.S.No.
103 of 2006 in which, attachment was ordered and the property was brought
under auction by the trial Court, on 28.04.2022. The first respondent, who
purchased the property in the auction sale, deposited 25 % of the amount on
2804.2022 itself. As per the condition of sale, the first respondent ought to
have deposited the balance amount on or before 13.05.2022. Since he has
not paid the balance amount, he moved an application in E.A.No.6 of 2022
in the month of August 2022 seeking extension of time for making payment
and the same was allowed by the trial Court. Aggrieved by the same, the
present civil revision petition is filed.
3.According to the learned counsel for the petitioners, the Court has
no jurisdiction to extend time specified under the Code of Civil Procedure.
The auction sale becomes nullity, on purchaser failing to pay balance sale
https://www.mhc.tn.gov.in/judis
C.R.P(MD)No.2243 of 2022
consideration within 15 days.
4.The plaintiff in O.S.No.312 of 2006 filed the above suit for recovery
of mortgage debt, in which, preliminary decree was passed on 31.08.2008
and final decree came to be passed on 11.08.2010. The plaintiff has
preferred E.P.No.5 of 2011 for execution of the above decree. Thereafter, the
property was brought to sale in the year 2020-2022 and the same was sold
into Court auction on 28.04.2022. The upset price was Rs.15,15,000/-. The
first respondent/auction purchaser deposited 25% of the sale price on the
same day and for balance amount, chellan was issued on 05.05.2022 and he
ought to have deposited the balance sale amount on or before 13.05.2022.
However, the first respondent failed to do so, filed E.A.No.6 of 2022 under
Section 151 of C.P.C., and the same was resisted by the petitioners in their
counter stating that as per Order XX1 Rule 84, 85 C.P.C, on the fifteen day
from the date of sale, the entire sale amount should be deposited into Court,
otherwise the sale become nullity. The Executing Court, considering the
above facts, allowed the said E.A.No.6 of 2022.
5.To support his contention, the learned counsel appearing for the
petitioners has relied upon the decision reported in 2001(2) CTC 44 in
S.V.Lakshmanan-vs-A.Venugopala Reddy and another, wherein it has been
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C.R.P(MD)No.2243 of 2022
held as follows:
“.... and it was clearly held that Rule 85 being
mandatory, its non-compliance renders the sale proceedings
a complete nullity requiring the executing Court to process
under Rule 86 and the property has to be resold unless the
judgment-debtor satisfies the decree by making the payment
before the resale. The argument that the executing Court has
inherent power to extend time on the ground of its own
mistake was also expressly rejected.”
6.Therefore, the Court has no jurisdiction to extend the time specified
under the Code of Civil Procedure, that is the entire amount should have
been deposited within fifteen days from the date of auction. If it is not done
so, the sale becomes nullity and therefore, the order passed by the Court
below is legally incorrect and therefore, the same is set aside. The revision
petitioner is permitted to withdraw the amount, which he had already
deposited to the Court. The Execution Court also shall consider the same on
application filed by the revision petitioners. Accordingly, this Civil
Revision Petition is allowed.
7.However, considering the facts and circumstances of the case, this
Court directs the I Additional Subordinate Judge, Nagercoil, to dispose the
E.P.No.5 of 2011 on merits and in accordance with law, within a period of
https://www.mhc.tn.gov.in/judis
C.R.P(MD)No.2243 of 2022
two months from the date of receipt of a copy of this order. No costs.
Consequently, the connected miscellaneous petition is closed.
17.07.2023
NCC:Yes/No
Index:Yes/No
Internet:Yes/No
Ns
To
1.The I Additional Subordinate Court,
Nagercoil.
2.The Section Officer,
V.R.Section,
Madurai Bench of Madras High Court,
Madurai.
https://www.mhc.tn.gov.in/judis
C.R.P(MD)No.2243 of 2022
K.GOVINDARAJAN THILAKAVADI, J.
Ns
C.R.P(MD)No.2243 of 2022
and
C.M.P(MD)No.10497 of 2022
17.07.2023
https://www.mhc.tn.gov.in/judis
