GANESH PILLAI Vs. SUDEVAN

JUDGEMENT

(1.) A bona fide purchaser, who was not aware of the sale in auction by the executing court executing a decree for recovery of money, is before this Court, against the concurrent findings rejecting of his application under Order 21 Rule 90. The suit was filed by the first respondent against the second respondent for recovery of money, numbered as O.S.No.1077/1999 before the Munsiff's court, Kollam. The suit was filed on 13-10-1999 and at the interlocutory stage an attachment before judgment, was ordered on 15-10-1999 in I.A.No.4289/1999. An ex-parte decree having been passed on 21-11-2000, 4 cents of property in Survey Nos.132/2 and 133/2 of Kollam East Village was brought to sale in E.P.No.41/2001. Auction took place on 22-10-2001 and the sale was confirmed on 6-11-2002. The revision petitioner herein approached the court under Order 21 Rule 90 with E.A.No.314/2002. The execution court having dismissed the application on 2-8-2003 finding that the applicant was not a bona fide purchaser, the revision petitioner was unsuccessful in appeal too.

(2.) In fact before the appellate court, the revision petitioner filed an application to withdraw the application made under Order 21 Rule 90, on the premise that the same would not be maintainable and contending that he has already filed an application under Order 21 Rule 97. The appellate court, found that the application for withdrawal is not maintainable and rejected the same. At the same time, the appellate court also found that since the appellant had admitted by the application for withdrawal that the claim under Order 21 Rule 90 was not maintainable, the appeal also stood dismissed.

(3.) I have heard learned counsel Sri.P.Viswanathan appearing for the revision petitioner and learned Senior counsel Sri.R.D.Shenoy instructed by Sri.Raja Vijayaraghavan appearing for the respondents 1 and 2 being the decree holder/auction purchaser.