Madras High Court
V.Balachandran vs Maruthupandi on 22 November, 2023
Author: G.Chandrasekharan
Bench: G.Chandrasekharan
C.M.S.A(MD)No.16 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED :22.11.2023
CORAM
THE HONOURABLE MR.JUSTICE G.CHANDRASEKHARAN
C.M.S.A(MD)No.16 of 2021
and
C.M.P(MD)No.2365 of 2021
V.Balachandran
... Appellant/Appellant/Petitioner/1st judgment debtor
/1st defendant
Vs.
1.Maruthupandi
... 1st respondent/1st respondent/
1st respondent/decree holder/plaintiff
2.Udaiyar ... 2nd respondent/2nd respondent/2nd respondent/
Auction Purchaser 3rd party
PRAYER:- Civil Miscellaneous Second Appeal filed under Section 100 of
Civil Procedure Code, against the judgment and decree, dated
27.07.2020, made in C.M.A.No.3 o 2017 on the file of the learned
Principal district Judge, Sivagangai, confirming the order and decreetal
order, dated 21.08.2017 made in E.A.No.132 of 2016 in E.P.No.39 of
2013 in O.S.No.180 of 2012 on the file of the Subordinate Judge,
Sivagangai.
For Appellant :Mr.AN.Ramanathan for
Mr.K.Muthu Ganesa Pandian
For R-1 :Mr.J.Anandha Kumar
For R-2 :Mr.V.Meenakshi Sundaram for
Mr.K.Vignesh Kumar
1/10
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C.M.S.A(MD)No.16 of 2021
JUDGMENT
This Civil Miscellaneous Second Appeal is filed against the
judgment and decree, dated 27.07.2020, made in C.M.A.No.3 of 2017
on the file of the learned Principal district Judge, Sivagangai, confirming
the order and decreetal order, dated 21.08.2017 made in E.A.No.132 of
2016 in E.P.No.39 of 2013 in O.S.No.180 of 2012 on the file of the
Subordinate Judge, Sivagangai.
2. The suit in O.S.No.180 of 2012 was filed for recovery of
money by the first respondent/decree holder against the appellant/first
defendant. The suit was decreed ex-parte on 12.08.2013. The first
respondent filed E.P.No.39 of 2013 for attachment and sale of the
property for realising the decree amount. Accordingly, the appellant's
property mentioned in the schedule of property in E.P.No.39 of 2013
was attached and sold in a Court auction sale on 23.06.2016.
Challenging the sale, appellant filed E.A.No.132 of 2016 under Order 21
Rule 90 and 151 C.P.C., to set aside the sale. The learned Executing
Judge finding no merit, dismissed the petition in E.A.No.132 of 2016.
Against the dismissal, appellant filed C.M.A.No.3 of 2017.
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3. The learned Appellate Judge has also on finding that the
appellant had not cared to contest the suit, but had not properly
participated in the execution proceedings, concurred with the finding of
the Executing Court and dismissed the appeal. Thus, the appellant has
filed this Civil Miscellaneous Second Appeal.
4. This Court framed the following substantial question of law
for consideration in this second appeal:
“Whether the Courts below were right in rejecting
the application for setting aside the sale, when the
petitioner/appellant had deposited the entire sale price
along with poundage as contemplated under Order 21 Rule
89 of C.P.C.?
5. It is the submission of the learned counsel for the appellant
that,
(i)Proper value was not ascertained before
proclamation of sale;
(ii)The property concerning the Civil
Miscellaneous Appeal is an ancestral property and other
sharers, who are entitled to claim share in the property
are not parties to the execution proceedings. ;
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(iii)No proper service of notice was effected on
the appellant in the sale proceedings, but, only
substituted service was effected; and
(iv)Value of the property is worth about
Rs.50 lakhs, but it was sold in Court auction
for Rs.4,60,000/- and the sale is not confirmed yet.
6. On these grounds, the learned counsel for the appellant
prays for setting aside the judgment and decree made in
C.M.A.No.3 of 2017, confirming the order and decreetal order made in
E.A.No.132 of 2016 in E.P.No.39 of 2013 in O.S.No.180 of 2012.
7. In response, learned counsel for the first respondent
submitted that the suit was filed in 2012, but the appellant deliberately
remained ex-parte. Even in the execution proceedings, after
appearance, he did not properly defend the execution proceedings. The
sale was conducted by following the procedure established by law and
thus, he seeks to dismiss this appeal.
8. The learned counsel for the second respondent opposed this
appeal on the ground that the sale was completed on 23.06.2016.
Second respondent immediately deposited the auction sale amount of
Rs.4,83,000/- on 29.06.2016. Petition to set aside the sale was filed
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under Order 21 Rule 90 only on 04.07.2016. But, the sale amount was
deposited by the appellant only on 01.09.2016. If the sale is sought to
be set aside on deposit of sale amount, application to set aside the sale
should have been filed within 60 days from the date of sale as per Order
21 Rule 92. The appellant was not diligent in prosecuting the suit and
the execution proceedings. He was watching from sidelines and with
much delay, the petition was filed. Therefore, there is no merit for
entertaining this second appeal.
9. I have considered the rival submissions and perused the
materials available on record.
10. During the preliminary hearing of this appeal, this Court
suggested the parties that in view of the payment of sale amount, the
parties may work out the possibilities of settlement. The appellant has
filed a memo, which is extracted hereunder:
“1.It is humbly submitted that the appellant
will pay a sum of Rs.6,25,000/- (Rupees Six Lakhs
Twenty Five Thousand) to the 1st respondent/decree
holder by way of demand draft as full and final
settlement towards the decree in O.S.No.180 of 2012 on
the file of the Sub-Court, Sivagangai.
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2)It is humbly submitted that the appellant will
deposit a sum of Rs.4,15,000/-(Rupees Four Lakhs
Fifteen Thousand) in the credit of E.A.No.132 of 2016 in
E.P.No.39 of 2013 in O.S.No.180 of 2012 on the file of
the Sub-Court, Sivagangai and the appellant have no
objection for withdrawing the same by the auction
purchaser/2nd respondent.
3)It is humbly submitted that the appellant
have no objection for withdrawing a sum of
Rs.4,83,000/-(Rupees Four Lakhs Eighty Three
Thousand) with accrued interest if any by the auction
purchaser/2nd respondent, which was deposited by the
auction purchaser/2nd respondent in the credit of
E.P.No.39 of 2013 in O.S.No.180 of 2012 on the file of
the Sub Court, Sivagangai.
4)It is humbly submitted that the appellant
may be permitted to withdraw a sum of Rs.4,83,000/-
(Rupees Four Lakhs Eighty Three Thousand) with
accrued interest if any, which was deposited by the
appellant through lodgement schedule in E.A.No.132 of
2016 in E.P.No.39 of 2013 in O.S.No.180 of 2012 on the
file of the Sub Court, Sivagangai.
It is humbly prayed that this Hon'ble Court
may be pleased to allow the above CMSA(MD)no.16 of
2021 on the file of this Hon'ble Court.”
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11. The learned counsel for the first respondent is agreeable
for the terms stipulated in the memo. But the learned counsel for the
second respondent submits that the second respondent is not willing
for these terms.
12. Admittedly, the appellant filed application to set aside the
sale on the ground of irregularity or fraud. It appears that no
irregularity or fraud has been made out.
13. The application to set aside the sale on deposit under
Order 21 Rule 89 should be filed, under Order 21 Rule 92 within a
period of sixty years from the date of sale. Admittedly, no such
application under Order 21 Rule 92 is filed. However, considering the
submissions made by the learned counsel for the appellant that the suit
property is worth about Rs.50 lakhs, that he had filed the petition
under Order 21 Rule 90 within ninety days from the date of sale and
deposited the amount and that he has come up with a proposal for
payment of decree amount to the decree holder; the sale amount with
accrued interest and a further sum of Rs.4,15,000/- to the second
respondent, this Court is of the view that, to render a substantial
justice to the parties and to meet the ends of justice, this appeal can be
allowed on the terms incorporated in the memo. Accordingly, this Civil
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Miscellaneous Second Appeal is allowed on the following terms:
“(1). Appellant shall pay a sum of
Rs.6,25,000/-(Rupees Six Lakhs Twenty Five Thousand
Only) to the first respondent/decree holder by way of
Demand Draft as full and final settlement towards the
decree in O.S.No.180 of 2012 on the file of the Sub-
Court, Sivagangai.
(2). Appellant shall deposit a sum of
Rs.4,15,000/- (Rupees Four Lakhs Fifteen Thousand) to
the credit of E.A.No.132 of 2016 in E.P.No.39 of 2013 in
O.S.No.180 of 2012 on the file of the Sub-Court,
Sivagangai. On such deposit, the second
respondent/auction purchaser is entitled to withdraw
this amount.
(3).Second respondent/auction purchaser can
withdraw a sum of Rs.4,83,000/- which was deposited
by him in E.P.No.39 of 2013 in O.S.No.180 of 2012 on
the file of the Sub-Court, Sivagangai, with accrued
interest.
(4).Appellant is permitted to withdraw
Rs.4,83,000/-(Rupees Four Lakhs Eighty Three
Thousand Only), which was deposited by him in
E.A.No.132 of 2016 in E.P.No.39 of 2013 in O.S.No.180
of 2012 on the file of the Sub-Court, Sivagangai.
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(5).Necessary application shall be filed by the
parties for withdrawal of amount. On filing of necessary
application, the same shall be disposed of immediately.
No Costs. Consequently, connected miscellaneous petition is closed.
22.11.2023
pm
Index:Yes/No
NCC:Yes/No
Note:Issue Order Copy on 28.11.2023
To,
1.The Principal district Judge,
Sivagangai.
2.The Subordinate Judge,
Sivagangai.
3.The Section Officer,
Vernacular Section,
Madurai Bench of Madras High Court,
Madurai.
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G.CHANDRASEKHARAN, J.
pm
22.11.2023
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