K.N.Balan vs A.Chandran
2023 Latest Caselaw 12770 Mad

                                                                            C.M.A.No.686 of 2015

                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                  DATED: 20.09.2023

                                                      CORAM:

                        THE HONOURABLE MR.JUSTICE V.LAKSHMINARAYANAN

                                                 C.M.A.No.686 of 2015


                     K.N.Balan                                          .. Petitioner
                                                      Vs.
                     1.A.Chandran

                     2.G.Senthil Murugan

                     3.R.Sekar                                          .. Respondents


                     PRAYER : Civil Revision Petition is filed under Order 43 Rule 1(J) of
                     Civil Procedure Code, to set aside the Fair and Decreetal order, dated
                     19.12.2014 made in E.A.No.74 of 2014 in E.P.No.10 of 2009 in
                     O.S.No.29 of 2006 on the file of the I Additional District Judge, Erode.


                                     For Petitioner   : Mr.M.Guruprasad

                                     For Respondents : Mr.A.Prabakaran for R1 and R2

                                                      : Mr.M.V.Venkataseshan for R3
                                                        Senior Counsel for Mr.V.V.Sathya

                     1/6


https://www.mhc.tn.gov.in/judis
                                                                                 C.M.A.No.686 of 2015


                                                       JUDGMENT

The suit had been filed in O.S.No.29 of 2006 against the appellant

by respondents 1 and 2 who are represented by Mr.A.Prabakaran. It

ended in a decree on 16.09.2008. As per the decree, the appellant was

called upon to refund the sum of Rs.10,00,000/- (Rupees ten lakhs only)

received towards advance amount altogether with the interest of 6 % per

annum. On default to honour the first clause of the decree, charge was

created over the suit schedule mentioned property.

2. The appellant did not honour the decree. In order to execute the

decree, E.P.No.10 of 2009 was presented under Order 21 Rule 11(2) of

CPC. The purpose of the said execution was to bring the property for

sale. Initially, the upset price was fixed at Rs.30,00,000/- (Rupees thirty

lakhs only). Challenging the same, CRP.No.710 of 2010 came to be filed

before this Court. This Civil Revision Petition was dismissed on

06.04.2011.

3. Thereafter, the children of the Judgement debtor filed an

application under Order 21 Rule 58, which came to be dismissed by the

https://www.mhc.tn.gov.in/judis C.M.A.No.686 of 2015

Trial Court against which the Civil Miscellaneous Appeal was presented

in CMA.No.3002 of 2012. This Court allowed the appeal and remanded

the matter to the learned executing Court for fresh disposal in accordance

with law. This was in and by way of order in CMA.No.3002 of 2012,

dated 10.10.2012.

4. On remand, the petition filed under Order 21 Rule 58 was

dismissed on 01.03.2013, against which another Civil Miscellaneous

Appeal was filed before this Court in CMA.No.1610 of 2013. The said

appeal was dismissed on 20.12.2013. Pending the appeal, the property

was sold to the 7th respondent herein. He purchased the property for a

sum of Rs.31,00,000/- (Rupees thirty one lakhs only). After the sale was

confirmed in favour of the auction purchaser, he moved an application

for take possession of the property.

5. In the mean time, the appellant/Judgement debtor filed an

application under Order 21 Rule 97 of CPC seeking to obstruct the

decree. The learned Trial Judge dismissed the same in and by way of an

order dated 19.12.2014. Challenging the same, the present Civil

https://www.mhc.tn.gov.in/judis C.M.A.No.686 of 2015

Miscellaneous Appeal has been filed.

6. Heard Mr.M.Guruprasad, learned counsel appearing for the

petitioner and Mr.A.Prabakaran, learned counsel appearing for 1st and 2nd

Respondents and Mr.M.V.Venkataseshan, Senior Counsel representing

Mr.V.V.Sathya appearing for 3rd Respondent. I have gone through the

records.

7. It is not in dispute that the appellant before me, Mr.K.N.Balan is

a Judgement debtor in O.S.No.29 of 2006. A Judgement debtor is not

entitled to obstruct the decree. The petition for obstruction as per Order

21 Rule 97 can be filed only by the decree holder or by the auction

purchaser, when they are obstructed from taking possession of the

property. An obstruction should always be by a third party and not by a

Judgement debtor. The narration of the facts would show that the

Judgement debtor has put all of his efforts in nullifying the sale made by

the Court. As a last resort, he has filed an application under Order 21

Rule 97. The application under Order 21 Rule 97 is not maintainable. I

have no other option to confirm the order passed by the I Additional

https://www.mhc.tn.gov.in/judis C.M.A.No.686 of 2015

District Judge, Erode in E.A.No.74 of 2014 in E.P.No.10 of 2009 in

O.S.No.29 of 2006.

8. In fine, CMA.No.686 of 2015 is dismissed. No costs.

20.09.2023 Index:Yes/No Speaking Order :Yes/No Neutral Citation:Yes/No MKN2/VEDA

To The I Additional District Judge, Erode.

https://www.mhc.tn.gov.in/judis C.M.A.No.686 of 2015

V.LAKSHMINARAYANAN,J.

MKN2/VEDA

C.M.A.No.686 of 2015

20.09.2023

https://www.mhc.tn.gov.in/judis