NARASAMMAL DIED Vs. M S SHANMUGAM

JUDGEMENT

(1.) LEARNED counsel for the petitioner raised several interesting questions of law. But they do not arise for consideration in the present case. In fact, they are very much outside the scope of the present proceeding out of which this civil revision petition has arisen.

(2.) THE short facts, which are necessary for this revision, are these :? THE property of the petitioner in the revision petition was the subject matter of mortgage in favour of one M S. Jayaprakash. Exercising his power under S 69 of the Transfer of Property Act, the mortgagee brought the property to sale and the respondent herein purchased it. THE respondent filed O.S. No. 6473 of 1975 on the file of the V Assistant Judge, City Civil Court, Madras for recovery of possession on the strength of his purchase . In that suit, several defences were raised attacking the validity of the sale in favour of the respondent. THE V Assistant Judge, City Civil Court. Madras, by his judgment dated 15-2-1980. upheld the validity of the sale and granted a decree in favour of the respondent, issue No. 4 in the suit was whether the sale was fraudulent and collusive between the mortgagee and his brother the plaintiff therein. That issue was found in favour of the plaintiff and the Court passed a decree for possession.

(3.) HOWEVER, learned counsel for the petitioner argued before me that the question of invalidity of the sale could be raised In the executing Court because the sale was vitiated by fraud. He placed reliance on the judgment of the Bombay High Court reported in Shewa Lachha Ba v. Bhawarilal 1 . Justice Masodkar, held that S. 44 of the Evidence Act in terms applies to execution matters as well which permits leading of evidence that the order sought to be executed was not binding as it was passed by mistake or fraud. The judgment of the Bombay High Court has no relevance whatever to the present case. It is not the contention of the petitioner that the decree passed in OS. No. 6473 of 1975, which is sought to be executed now, is vitiated by fraud or mistake. There is no such plea. On the other hand, the plea is that the sale in favour of the plaintiff in O.S. No. 6473 of 1975, on the strength of which the decree was passed in favour of the plaintiff, was vitiated by fraud of the mortgagee. That plea is not availalable to the petitioner after the court has held in the suit that the sale was valid. According to the learned counsel, the particular facts on the basis of which the sale was said to be void, were not placed before the court at the time of the trial of the suit. If that is so, the petitioner has to blame herself. Having had the opportunity to let in evidence and establish the case that the sale was void, it is not open to the petitioner to raise that question in the executing court after the court has held that the sale was valid. I have referred to the fact that the petitioner came up to this court in second appeal and challenged the same; but failed in all the three courts. Hence the plea that the sale was void is not available to the petitioner herein.