L RAJAN Vs. MUTHUSAMI NAIDU

JUDGEMENT

(1.) This civil revision petition raises a question of limitation at the instance of the auction purchaser of an extent of about 0.05 1/2 cents in S. F. No. 663/1, Telungupalayam, within Coimbatore Municipality, in execution of the decree in 0. S. No. 1176 of 1975, District Munsif Court, Coimbatore in E. P. 118 of 1976. The first respondent is the decree holder and the second respondent is the judgment-debtor in 0. S. No. 1176 of 1975. In execution of the decree obtained by the first respondent against the second respondent, the property referred to earlier was brought to sale and in the auction held on 3-1-1977, the petitioner was the highest bidder for a sum of Rs. 5050 and deposited one-fourth of the sale amount on 3-1-1977, and the balance on 17-1-1977. On 10-2-1977, the sale in favour of the petitioner was also confirmed. There after, the petitioner found out that the same property was sold in another court auction previously in E.P.R. No. 2 of 1976 in 0. S. 435 of 1975 on 11-10-1976 pursuant to a decree obtained by one S. R. Appasami Chettiar against the second respondent herein and the property had also ,been purchased by one Panchanathan. According to the case of the petitioner, though the first respondent decree- holder knew about the previous sale, he fraudulently suppressed that and brought the property to sale as if the second respondent had a saleable interest therein and since the property had also been sold on 11-10-1976, the petitioner claimed that the sale in his favour was void and in 'operative and would not operate to convey any title. Therefore, the- petitioner filed E. A. No. 144 of 1977 on 17-2-1977 under 0. 21, Rules 91 and 92 (2), read with Ss. 47 and 151 C. P. Code, praying for a declaration that the court auction sale held on 3-11977 in E. P. No. 118 of 1976 is void, and if necessary, to set aside the sale and direct the refund of the entire amount deposited by the petitioner towards the court sale. (*Against decree of Sub. J., Coimbatore in C.M.A. No.. 154 of 1978 etc).

(2.) That application was resisted by the first respondent herein, who contended that he did not assure that the second respondent judgment debtor had a saleable interest in the property and that the claim of the petitioner that there was an earlier sale of the same property in -E.P.R. No. 2 of 1976 in 0. S. No. 435 of 1975 was not correct. The first respondent reiterated that the second respondent had a saleable interest in the property at the time of the auction sale in E.R.P. No. 118 of 1976, pursuant to the decree in 0. S. No. 1176 of 1,975, and, there fore, the sale in favour of the petitioner was perfectly valid. It was also the further plea of the first respondent that it was the duty of the petitioner to satisfy himself with reference to the defects in the property and having failed to take such precautions, it was not open to the petitioner to seek to set aside the court sale.

(3.) The learned District Munsif, Coimbatore, who enquired into this application, held that the property purchased by the petitioner in the court auction sale held on 3-1-1977 in execution of the decree in E. P. No. 118 of 1976 in 0. S. No. 1176 of 1975 had already been sold in E.P.R. No. 2 of 1976 in 0. S. No. 435 of 1975 on 11-10-1976 and the sale had also been confirmed on 18-111976, and, therefore, the subsequent sale held on 3-1-1977 in E. P. No. 118 of 1976 would not operate to convey any title in favour of the petitioner with reference to the property purchased by him and on this finding set aside the auction sale held on 3-1-1977, and directed that the amounts deposited by the petitioner to purchase the property in court auction should be returned to him. In the result, E. A. No. 144 of 1977 filed by the petitioner was allowed. Aggrieved by this, the first respondent herein preferred an appeal. C.M.A. No. 154 of 1978 in Sub. Court, Coimbatore. The learned Subordinate judge held that as the property was sold in court auction in favour of the petitioner on 3-1-1977, and the sale was Also confirmed on 10-2-1977, the application to get aside do ode filed by the petitioner on 17-2-l977, after the expiry of 30 days from the date of sale, was barred under Art. 166 of the Indian Limitation Act. On this conclusion the appeal was allowed and E. A- No. 144 of .1977 filed by the petitioner was dismissed . It is the correctness of this order that is challenged in this revision petition.