Madras High Court
G.S.Ramachandran vs Jeyabalan ... 1St on 26 July, 2023
C.R.P.(MD).No.359 of 2018
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 26.07.2023
CORAM:
THE HONOURABLE MR.JUSTICE C.KUMARAPPAN
C.R.P.(NPD)(MD)No.359 of 2018
and
C.M.P(MD) No.1616 of 2018
G.S.Ramachandran
S/o. Shanmugam
Now residing at Post Box No.31527,
Modern Arts, Ajman, U.A.E
Permanent resident at
No.2/21, Katcharkula Street,
Sannapurm, Thirunageswaram
Kumbakonam Taluk,
Represented by his Power Agent,
P.R.Mohandhas,
S/o. Rajamnickam,
No.40, New Middle Street,
Thirunageswaram
Kumbakonam Taluk,
Thanjavur District. ... Petitioner/Petitioner/
3rd Party/3rd Party
-vs-
1. Jeyabalan ... 1st Respondent/1st Respondent/
Auction Purchaser/3rd Party/3rd Party
2. Renugadevi
... 2nd Respondent/2nd Respondent/
Respondent/Petitioner/Plaintiff
3. Sengalani ... 3rd Respondent/3rd Respondent/
Respondent/Defendant
1/10
https://www.mhc.tn.gov.in/judis
C.R.P.(MD).No.359 of 2018
PRAYER: Civil Revision Petition is filed under Section 115 of C.P.C, against
the fair and decreetal order dated 13.04.2017 passed in E.A.No.177 of 2013
in E.A.No.80 of 2013 in E.P.No.02 of 2013 in O.S.No.217 of 2005 on the file
of the Principal District Munsif Court, Kumbakonam, Thanjavur District.
For Petitioner : Mr.Jameel Arasu
For Respondents : Mr.G.Mohan Kumar – for R1 and R2
ORDER
The present Civil Revision Petition has been filed by the petitioner
under Section 115 of C.P.C, against the fair and decreetal order dated
13.04.2017 passed in E.A.No.177 of 2013 in E.A.No.80 of 2013 in E.P.No.02
of 2013 in O.S.No.217 of 2005 on the file of the Principal District Munsif
Court, Kumbakonam, Thanjavur District.
2. The petitioner before the trial Court is the revision petitioner herein.
3. The short facts which gives rise to the instant Civil Revision Petition
are that, the petitioner namely, G.S.Ramachandran, is the brother of the
judgment debtor viz., Sengalani. It appears that in a suit filed by the wife of
https://www.mhc.tn.gov.in/judis
C.R.P.(MD).No.359 of 2018
Mr.Sengalani for the relief of maintenance in O.S.No.217 of 2005, against
him was decreed on 30.11.2006. In which, the Court has also created a charge
over the petition mentioned property. According to the decree dated
30.11.2006, the description of property is as follows:
“Fk;gNfhzk; jhYf;fh> jpUehNf];tuk;
fpuhkk;> fr;rhu Fsj;njU> Nlhh; ek;gh; 2/21>
gioa rh;Nt vz; 195/1 Gjpa rh;Nt vz; 402/32
khb tPL nfhy;iy> vyf;bhpf; fnzf;\d;
cs;gl fpoNky; 40 mb> njd;tly; 60 mb>
ehd;nfy;iy tpguk;:
tlf;F Gwk; fr;rhh; Fsj;njU>
njw;F Gwk; Njhg;Gj;; njU> fpof;F Gwk;
fhiuf;fhy; nkapd; NuhL> Nkw;F Gwk; \z;Kf
Kjypahh; tPL (nrq;fodpapd; je;ijapd; tPL)”
4. It appears that after the decree, the decree holder being wife of
Sengalani has filed an Execution Petition in E.P.No.02 of 2013 for the sale of
charged property. It also appears from the records that, after the attachment,
the petition mentioned property was auctioned on 13.09.2012 and
subsequently the sale was duly confirmed on 15.11.2012. At this juncture, the
petitioner herein who is the brother of Sengalani/judgment debtor has filed an
application under Section 47 of C.P.C on the ground that the petition
https://www.mhc.tn.gov.in/judis
C.R.P.(MD).No.359 of 2018
mentioned property has already been settled in his name by virtue of
settlement deed dated 26.04.2011, and that the survey numbers of the suit
property has been wrongly mentioned in the Execution Petition. Therefore, he
prayed for an adjudication of his claim and to set aside the sale.
5. In the said application, the Decree Holder as well as the Auction
Purchaser has filed a counter statement disputing the change of petition
mentioned property, and has also mentioned that in view of the charge decree
dated 30.11.2006, the subsequent settlement deed executed by the judgment
debtor (Sengalani) in the name of the petitioner who is the brother, the third
party in the proceedings, will be no way affected by the sale which had been
conducted by the Court.
6. After considering on either side, the learned trial Judge has rejected
the claim petition filed under Section 47 of C.P.C on the ground that the
petition filed under Section 47 of C.P.C by the 3rd party is not maintainable,
and has also found that even according to the petitioner herein, the petition
mentioned property and the property which was auctioned are one and the
same and dismissed the application.
https://www.mhc.tn.gov.in/judis
C.R.P.(MD).No.359 of 2018
7. This Court has given anxious consideration to the submissions of the
learned counsel on either side.
8. Now the short point to be decided in the application is whether there
is any justification for the petitioner to file application under Section 47 of
C.P.C. As rightly observed by the learned trial Judge, application under
Section 47 of C.P.C can be filed only between the parties. For easy reference
Section 47 C.P.C is extracted hereunder:
“47. Questions to be determined by the Court
executing decree (1) All questions arising between the
parties to the suit in which the decree was passed, or
their representatives, and relating to the execution,
discharge or satisfaction of the decree, shall be
determined by the Court executing the decree and not
by a separate suit.
(2) (Omitted by Amendment Act, 1976)
(3) Where a question arises as to whether any
person is or is not the representative of a party, such
question shall, for the purposes of this section, be
determined by the Court.”
https://www.mhc.tn.gov.in/judis
C.R.P.(MD).No.359 of 2018
9. Therefore, admittedly, the petitioner is not a party to the proceedings
and he is only the brother of the judgment debtor. According to him, the
property was settled in his favour. As rightly observed by the learned trial
Judge, when there was a charge decree on 30.11.2006, the very execution of
sale deed is contrary to the charge decree. The petitioner cannot have any
better title beyond the charge decree.
10. Apart from these two aspects, yet another pertinent issue which has
been raised by the petitioner is that, in the suit, while referring the description
of property, the door number has been mentioned as 2/21 and Old survey No.
195/1, new Survey No.402/32. However, in the execution petition, contrary to
the same, a different survey numbers of the property has been mentioned in
the execution petition. And, that property alone sold. The description of
property mentioned in execution petition is as follows:
“jpUtpilkUJh; jpUehNf];tuk; fpuhkk;>
fr;rhh;Fyk; njU.Nlhh; ek;gh; 2/21> Gy vz; 168/2
(gioa rh;Nt ek;gh; 402 /32) khb tPL nfhy;iy
vyf;l;hpf; fndf;\d; cs;gl fpoNky; 40 mb
https://www.mhc.tn.gov.in/judis
C.R.P.(MD).No.359 of 2018
njd;tly; 60 mb. ehd;nfy;iy tpguk;: tlf;F
Gwk; fr;rhh; Fsj;njU> njw;F Gwk; Njhg;Gj;;
njU> fpof;F Gwk; fhiuf;fhy; nkapd; NuhL>
Nkw;F Gwk; \z;Kf Kjypahh; tPL.”
11. As per the above reference, there is some difference in respect of
the survey number in the execution petition. The Survey number has been
referred as S.No.168/2. However, as a matter of fact the old survey number
has also been referred in the execution petition. Apart from that, the four
boundaries mentioned in the decree has been exactly mentioned in the
execution petition. Curiously, when the petitioner was cross examined, he,
himself has admitted that there is no difference between the petition
mentioned property and the property which was purchased by the auction
purchaser. Therefore it is apparent that there is no difference between the suit
mentioned property and the property brought to auction.
12. Therefore, this Court could not find any infirmity or illegality in the
auction took place on 13.09.2012. Thus, this Court could not find any scope
for interference of the well considered order of the learned trial Judge.
https://www.mhc.tn.gov.in/judis
C.R.P.(MD).No.359 of 2018
13. In the result , this Civil Revision Petition is dismissed. There shall
be no order as to costs. Consequently connected Miscellaneous Petition is
closed.
26.07.2023
NCC : Yes/No
Index : Yes / No
Internet : Yes / No
ebsi
To
1. The Principal District Munsif Court,
Kumbakonam, Thanjavur District.
https://www.mhc.tn.gov.in/judis
C.R.P.(MD).No.359 of 2018
C.KUMARAPPAN,J.
ebsi
C.R.P(PD)(MD)No.359 of 2018
https://www.mhc.tn.gov.in/judis
C.R.P.(MD).No.359 of 2018
26.07.2023
https://www.mhc.tn.gov.in/judis
