CHINNAKARUPATHAL Vs. A D SUNDARABAI

JUDGEMENT

(1.) One Ammasai Gounder filed a suit against A.T.Krishnasami Mudaliar and another for recovery of amounts due towards supply of jaggery in O.S.No.226 of 1946 on the file of the Sub-Court, Coimbatore. The suit was decreed on 14.10.1947. The defendants in the suit filed an appeal in the Madras High Court in A.S.No.713 of 1947. On an application by the defendants (appellants in that appeal), stay of execution of the decree was granted subject to the defendants depositing the decretal amount in court. The High Court permitted the plaintiff (respondent in that appeal) to withdraw the said decretal amount after furnishing security to the satisfaction of the court. One Ramaswami Gounder became the surety and gave his agricultural lands as security for the amount permitted to be withdrawn by the plaintiff.

(2.) The appeal by the defendants was allowed by the High Court on 31.10.1952 and the money decree granted in O.S.No.226 of 1946 was set aside. Consequently, the defendants in the suit moved an application for restitution under section 144 of the Code of Civil Procedure ('CPC' for short). The plaintiff did not repay the amount withdrawn by him and absconded. Therefore the defendants filed E.P.No. 134/1957 for recovery of the amount by sale of the lands offered as security by Ramaswami Gounder. The lands offered as security were sold by auction on 16.11.1960 and 6.9.1961. The fifth Respondent and predecessors of respondents 6 to 26 are stated to be the auction purchasers.

(3.) During the pendency of the said execution proceedings, the surety Ramaswami Gounder died and his widow Rajammal was impleaded as his legal representative. On 14.12.1960, Rajammal moved an application (EA No. 148 of 1961) under Order 21 Rule 89 CPC for setting aside the auction sale. But she did not deposit the amount mentioned in the sale proclamation nor the amount equal to 5% of the purchase money, as required under the said rule. By order dated 17.9.1966, her application for setting aside the sale was rejected. Rajammal challenged the said dismissal before the High Court in CMA No.337 of 1966. The High Court by its judgment dated 26.8.1971 dismissed the appeal of Rajammal and confirmed the order of the Executing Court. Rajammal challenged the said judgment in an appeal by special leave before this Court (CA No.382 of 1973). During the pendency of the said appeal, Rajammal moved an application for scaling down the debt and setting aside the auction sale under the provisions of the Tamil Nadu Agriculturists Relief Act, 1938 ('Act' for short). This Court by order dated 7.11.1986 dismissed Rajammal's appeal, but however, referred the application for scaling down the debt and setting aside the sale under the Act, to the Subordinate Court, Coimbatore, for disposal in accordance with law.