Madras High Court
A.Kuthalingam vs A.K.Seshathri (Died) on 24 February, 2025
C.R.P.(MD)No.1021 of 2020
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 24.02.2025
CORAM
THE HON'BLE MR.JUSTICE G.ILANGOVAN
C.R.P.(MD)No.1021 of 2020
and C.M.P.(MD).No.6564 of 2020
A.Kuthalingam ... Petitioner/Respondent/Defendant
Vs.
A.K.Seshathri (Died)
1.Manjula
2.S.Lavanya
3.S.Ananth
4.S.Mamtha ... Respondents/Petitioners/Plaintiff
5.S.Sabtha Sathish ... Respondent/3rd Party cum Auction Purchaser
PRAYER : Civil Revision Petition is filed under Section 115 of the
Civil Procedure Code, to set aside the fair and decretal order passed in
E.P.No.27 of 2009 in on the file of the Sub Court, Periyakulam, Theni
District, in O.S.No.8324 of 1996 on the file of the City Civil Court,
Chennai, dated 31.07.2020.
For Petitioner : Mr.G.Prabhu Rajadurai for
Mr.K.Jeyamohan
For Respondents : Mr.H.Lakshmi Shankar for R1 to R4
Mr.G.Sridharan for
Mr.G.Mohankumar for R5
1/17
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C.R.P.(MD)No.1021 of 2020
ORDER
This revision petition has been filed to set aside the fair and
decretal order passed in E.P.No.27 of 2009 in on the file of the Sub
Court, Periyakulam, Theni District, in O.S.No.8324 of 1996 on the file of
the City Civil Court, Chennai, dated 31.07.2020.
2.The facts in brief:
Suit in O.S.No.8324 of 1996 was filed by A.K.Seshathri, the
deceased first respondent herein against the revision petitioner seeking
the relief of recovery of a sum Rs.4,75,450/- with subsequent interest and
cost. The defendant namely the revision petitioner entered appearance.
Later failed. Judgment was passed decreeing the suit as prayed for with
cost. Decree was put in execution in E.P.No.27 of 2009, wherein, 18
items of properties were sought to be brought for sale.
3.The revision petitioner filed a counter contending that on the
basis of false and fabricated documents, exparte decree was obtained. He
is taking steps to file a petition to set aside the exparte decree. The
amount mentioned in the decree was also disputed. The properties
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mentioned in the petition are not his absolute properties. Those were
already sold to several persons. Since the properties do not belong to
him, attachment and sale cannot be ordered. The decree itself has now
time barred.
4.After hearing both sides, some of the properties were brought for
sale. Sale was conducted in the public auction. Sale certificate was
issued. EP was terminated as closed by the order dated 31.07.2020. Now
challenging the entire proceedings, this revision has been filed on very
many grounds.
5.Before we go into the points raised by the counsel on record for
the petitioner, we will go to the dates and events mentioned by the
respondent.
6.In the EP, notice was served upon the revision petitioner on
25.06.2009. As mentioned above he filed his counter on 23.07.2009.
After prolonged proceedings, the court auction was conducted on
03.06.2019. Some of the properties were deleted from the execution. Sale
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was confirmed on 05.08.2019. On 27.07.2020 Sale certificate was issued.
These are the dates and events.
7.Now we will go to the grounds. According to the counsel for the
revision petitioner, the valuation mentioned for 37 items of the property
is highly disputed, since no proper valuation was done. It was under
valued. In the fourth item comprised 6.78 acres with a house situated,
which is valued more than Rs.1 Crore, the auction was conducted for a
meagre amount of Rs.2.20 lakhs. Auction purchaser is none other than
the brother-in-law of the daughter of this revision petitioner. According
to him, there was some issue between his daughter and himself. He
believed his daughter through out the proceedings. But, any how with the
collusion of her brother-in-law the property worth about several lakhs
were purchased for meagre amount. This according to him, can be taken
into account by this court. In the statement of proclamation bungalow
was not mentioned. In the properties sold a Well is also situated. Without
the Well, other lands of the revision petitioner cannot be irrigated. When
valuable properties are brought for sale for meagre amount, at many
times, this Court has interfered into the order of sale by exercising the
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power under Article 227 of the Constitution of India.
8.He would further submit that for the inconvenience caused to the
auction purchaser, he is ready to compensate him and as well as the
decree holder also. At the time of bringing the properties for sale, the
execution court has not taken into account or consider the objection
made by him. Even though EP was closed, still delivery is not effected.
So the petition does not suffer from delay and laches.
9.The learned counsel for the auction purchaser would submit that
no objection was raised by the revision petitioner at the time of filing
counter in the main EP regarding the valuation. So there was no occasion
for the execution court to go into the question of valuation. The
proceedings in the execution was pending for more than 10 years.
Several execution applications were filed by the decree holder to reduce
the upset price. Notices were sent to the revision petitioner on each and
every occasion.
10.He would further submit that as per Order 21 Rule 90 of CPC,
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60 days time is prescribed to set aside the sale. Now huge time lapsed.
By a short cut method, this revision is preferred questioning the legality
of the execution proceedings by invoking Article 227 of the Constitution
of India, which according to him, is nothing but an abuse of process of
the Court, even though revision was filed under Section 115 of the Civil
Procedure Code.
11.Regarding the factual aspect, he would submit that as per the
arrangement between the auction purchaser and the judgment debtor loan
worth about Rs.1.75 crore was settled by him under OTS scheme in
separate transaction. That was the main reason for the revision petitioner
to allow the auction purchaser to bid in the auction. Now something has
gone wrong between the revision petitioner and the auction purchaser.
All of sudden this petition is filed, which according to him is nothing but
abuse.
12.The decree holder would submit that the price was fixed by the
execution Court on its own by taking into account the extent and
valuation. In the upset price reduction petitions notices were sent to the
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revision petitioner. But, he did not receive the same. In stead of invoking
Order 21 Rule 90 CPC, this petition is filed. He supports the arguments
of the auction purchaser.
13.In the light of the above said rival submissions we have to first
clear the preliminary point of invoking jurisdiction under Article 227 of
the Constitution of India and this point is no more res integra in view of
the authority to pronouncement of law on this point by the Honourable
Supreme Court in the Judgment made in the case of Virudhunagar
Hindu Nadargal Dharma Paribalana Sabai and Others Vs. Tuticorin
Educational Society and others reported in AIRONLINE 2019 SC
2691, that when specific provisions is available in Civil Procedure Code,
to ventilate grievance without resorting to such remedy filing petitions
under Article 227 of the Constitution of India directly to the High Court
is deeply deprecated. The following passages requires to be kept in mind.
“12. Secondly, the High Court ought to have seen
that when a remedy of appeal under section 104
(1)(i) read with Order XLIII, Rule 1 (r) of the
Code of Civil Procedure, 1908, was directly
available, the respondents 1 and 2 ought to have
taken recourse to the same. It is true that the
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availability of a remedy of appeal may not always
be a bar for the exercise of supervisory
jurisdiction of the High Court. In A.
Venkatasubbiah Naidu Vs. S. Chellappan & Ors.
1, this Court held that “though no hurdle can be
put against the exercise of the Constitutional
powers of the High Court, it is a well recognized
principle which gained judicial recognition that
the High Court should direct the party to avail
himself of such remedies before he resorts to a
Constitutional remedy”.
13. But courts should always bear in mind a
distinction between (i) cases where such
alternative remedy is available before Civil
Courts in terms of the provisions of Code of Civil
procedure and (ii) cases where such alternative
remedy is available under special enactments
and/or statutory rules and the fora provided
therein happen to be quasijudicial authorities and
tribunals. In respect of cases falling 1 (2000) 7
SCC 695 under the first category, which may
involve suits and other proceedings before civil
courts, the availability of an appellate remedy in
terms of the provisions of CPC, may have to be
construed as a near total bar. Otherwise, there is
a danger that someone may challenge in a
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revision under Article 227, even a decree passed
in a suit, on the same grounds on which the
respondents 1 and 2 invoked the jurisdiction of
the High court. This is why, a 3 member Bench of
this court, while overruling the decision in Surya
Dev Rai vs. Ram Chander Rai2, pointed out in
Radhey Shyam Vs. Chhabi Nath3 that “orders of
civil court stand on different footing from the
orders of authorities or Tribunals or courts other
than judicial/civil courts.
14. Therefore wherever the proceedings are
under the code of Civil Procedure and the forum
is the Civil Court, the availability of a remedy
under the CPC, will deter the High Court, not
merely as a measure of self imposed restriction,
but as a matter of discipline and 2 (2003) 6 SCC
675 3 (2015) 5 SCC 423 prudence, from
exercising its power of superintendence under the
Constitution. Hence, the High Court ought not to
have entertained the revision under Article 227
especially in a case where a specific remedy of
appeal is provided under the Code of Civil
Procedure itself.”
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14.Per contra, the learned counsel for the revision petitioner would
rely upon the following Judgments.
1. The Judgment of this Court made in the case of K.J.Prakash
Kumar Vs. Rasheeda Yasin in C.R.P.(N.P.D.)No.2574 of 2007
dated 10.02.2009, and
2. The Judgment of this Court made in the case of C.Velu @
Venkatasalam Vs. S.Kandasamy Chettiar (Died) thro' his legal
heirs and others in C.R.P.(N.P.D.).No.1904 of 2005 dated
15.07.2010.
15.So the question, which arises for consideration is whether
without exhausting the remedy as provided under the provisions of CPC,
this revision will lie.
16.In view of the settlement of law by the Honourable Supreme
Court, now we will see whether opportunity was available to the revision
petitioner earlier and whether he failed to utilise the opportunity
properly.
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17.As mentioned above, in the main EP itself he was served with
notice, entered appearance, filed a vague counter making untenable
grounds. At that time itself he was very well aware that so much of the
properties are intended to brought for sale. Not even a single word was
dedicated to challenge the valuation mentioned in the EP. But on the
contrary as mentioned above, he stated unfounded grounds.
18.Now coming to the valuation issue. The record of proceedings
is filed, wherein, we find that among 24 items mentioned in the EP,
some items were deleted and some were sold as tabulated below.
Survey Upset price Upset price Upset price Value Value As per V Property
No. fixed as per fixed as per fixed as per refixed by fixed by Memo sold/delete
E.A.No.94 E.A.No.88 E.A.No.47 Court as Court as dated d
of 2010 of 2011 of 2012 interred by per 07.03.201
upset price of 2016 Proclamati
reduction on fixed as
petition per current
after the value
report of
the Senior
Bailiff in
E.A.No.60
of 2014
1189/2 50,000 50,000 50,000
1192/2 deleted deleted deleted deleted deleted
1197/4 deleted deleted deleted deleted deleted
1199/2 deleted deleted deleted deleted deleted
1203/1B 10,000 15,000 10,000 5,00,000 3,00,000 sold
1203/2B 75,000 75,000 75,000 2,00,000 2,00,000
727 80,000 80,000 80,000 2,00,000 1,50,000
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732 75,000 80,000 80,000 2,00,000 1,50,000
733/1 1,00,000 1,00,000 1,40,000 4,00,000 3,00,000
733/2 1,00,000 1,00,000 1,40,000 4,00,000 3,00,000 07.01.2019
sold
737/1 60,000 60,000 80,000 2,00,000 1,50,000
737/3 20,000 20,000 20,000 75,000 50,000
738/3B2 deleted deleted deleted deleted deleted
741/3A deleted deleted deleted deleted deleted
741/3C 60,000 60,000 70,000 84,000 Sold
741/4B 2,000 2,000 4,000 07.01.2019
sold
773/2 80,000 80,000 90,000 1,31,000 Deleted
since sale
deed dt.
26.05.1981
in the name
of Perumal
(Stated in
calculation
memo) sold
874/2 1,00,000 1,00,000 1,40,000 1,73,000 Deleted
since sale
deed dt.
26.05.1981
in the name
of Perumal
sold
891 80,000 80,000 90,000 1,24,000 sold
892/2 10,000 10,000 10,000
902 1,50,000 1,50,000 1,70,000 sold
904 1,00,000 1,00,000 1,50,000
910 2,00,000 2,00,000 2,50,000
913 2,00,000 2,00,000 3,00,000
19.In E.A.No.94 of 2010, filed for reducing the upset price, notice
could not be served upon the revision petitioner. Paper publication was
ordered, upset price was fixed; In E.A.No.88 of 2011 notice was served
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upon the revision petitioner. He entered appearance through Advocate
and for filing counter it was adjourned, no counter was filed. Upset price
was fixed by the Court.
20.In E.A.No.166 of 2011 again, notice was served upon the
revision petitioner. But, failed to appear. He was set exparte. Again upset
price was fixed by the Court; In E.A.47 of 2012 again he appeared
through Advocate, did not file the counter. So set exparte. Valuation was
fixed.
21.In E.A.No.60 of 2014, again notice was served to the revision
petitioner, but, failed to appear and he was set exparte. So valuation was
fixed; In E.A.No.18 of 2016, notice was refused to receive by the
revision petitioner. Hence, he was set exparte and upset price was fixed.
22.So as indicated above, verification of Record of proceedings
also does indicates that several opportunities were available to the
revision petitioner to challenge the valuation. But, failed to utilise those
opportunities in proper manner. Now, all of sudden, now he is woke up
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and filed this revision petition.
23.From the tabulation above, it is seen that most of the properties
were deleted and some of the properties were brought for sale. Even
though the decree holder has fixed his own upset price, but the valuation
fixed by the Court as mentioned in the tabulation indicates that more than
the guideline value and test value, the upset price were fixed. Record of
proceedings of the execution court does indicate that every possible step
and care has been taken to see that proper valuation is fixed and property
sufficient for answering the decree amount are brought for sale. As
mentioned above it is a prolonged and time consuming proceedings.
24.As mentioned above, having exhausted the remedy available
more than once, now he cannot invoke the jurisdiction of this Court
under Article 227 of the Constitution of India, by way of this revision by
stating that excessive execution was made by the court. Factual aspect
cannot be gone into. So I am avoiding above said ground.
25.The over all assessment of the facts and circumstances clearly
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indicates that last minute attempt is made by this revision petitioner,
which is not well founded. Hence I am of the considered view that such
sort of attitude on the part of the litigant should not and cannot be
encouraged. If this sort of revision petition is entertained, then no
sanctity can be attached to the judicial process.
26.As mentioned above execution Court was very careful in its
approach, which cannot be found fault on any ground. Some thing has
gone wrong with the revision petitioner and auction purchaser
somewhere else. The Court should not be used, to settle the score. This
petition is nothing but an attempt towards that. So I find absolutely no
reason to entertain this revision petition. Revision fails.
27.Accordingly, this civil revision petition stands dismissed with
costs. Consequently, connected miscellaneous petition is closed.
24.02.2025
NCC : Yes / No
Index : Yes / No
Internet : Yes / No
TM
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To
1.The Subordinate Judge, Periyakulam, Theni District.
2.The Section Officer,
E.R.Section/V.R.Section,
Madurai Bench of Madras High Court, Madurai.
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G.ILANGOVAN,J.
TM
24.02.2025
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