PHILIP JOSEPH Vs. ARUNKUMAR

JUDGEMENT

(1.) In the course of execution of a decree for recovery of money, an item of immovable property attached before judgment was sold in court auction. The parcel is an apartment in a multistoried building. The auction purchaser, the appellant, deposited the bid amount. The sale was confirmed. As a consequence, delivery was ordered. When delivery proceedings went to be effected. Krishnankutty and Omana filed applications obstructing the delivery. The executing court ordered delivery to be effected leaving Krishnankutty and Omana to raise their objections after dispossession. They, accordingly, filed application under Order XXI, Rule 99 and also moved this Court which, ultimately, resulted in a direction to the court below to adjudicate on the application under Order XXI, Rule 99. Such an application is essentially one filed after dispossession. The persons whom Krishnankutty and Omana had inducted as tenants were thrown out of possession in the course of execution proceedings. In the adjudication of the application under Order XXI, Rule 99, Krishnankutty and Omana, as claim petitioners, established their antecedent title to the attached property on the strength of a sale deed which took effect before the order of attachment before judgment. The court below believed that and acted on it. Thereby, it upheld the title of Krishnankutty and Omana and held that their application under Order XXI, Rule 99 is to be allowed, directing that they be put in possession of the property.

(2.) The auction purchaser is in appeal before us. His appeal, in sum and substance, is pointedly focused on the fact that no further order as is deemed fit in the circumstances of the case is passed by the court below as enjoined by Clause (b) of Rule 98(1) of Order XXI, allowing him recovery of amounts as are payable to him as a result of the fact that the sale will stand set aside and possession is being ordered to be restored to Krishnankutty and Omana. Having held that the said item of property could not have been sold in court auction on the basis of the attachment before judgment in the suit from which this appeal arises, it was incumbent upon the court below to have returned to the auction purchaser the amounts that he had expended, including by way of deposit and other amounts suffered as consequence of the sale. Such amount is to be determined and has to be ordered in terms of Order XXI, Rule 98(1)(a).

(3.) We may here notice that the judgment debtor, did not contest the execution proceedings and the decree is an ex parte one. The plaintiff is now stated to be abroad and he has withdrawn, through his Power of Attorney Holder, the amounts deposited by the auction purchaser before the court below. This means that necessary directions will have to be issued to the decree holder as may be found required, for the executing court to satisfy itself of the directions and issue orders in terms of Order XXI, Rule 98(1)(a) as a consequence of the impugned order. This is a matter on which the executing court will have to take a decision after hearing the auction purchaser and the decree holder.