R KUPPAMMAL Vs. T R NATARAJA ACHARI

JUDGEMENT

(1.) THE respondent obtained a decree for possession in O.S.No.1206 of 1983, against one Kanakavalliammal whose legal representatives are the petitioners. THE suit was decreed. THE appeal was allowed. Against that, the respondent filed the second appeal before this Court which was allowed confirming the decree of the trial Court. THE petitioners" predecessor moved the Supreme Court and her special leave was rejected on 21.1.1993. THEreafter, the respondent filed E.P.No.1899 of 1993. During the pendency of the execution petition, the judgment-debtor died. THEreafter, the present petitioners were brought on record as her legal representatives. THEy filed an application under Sec.47, C.P.C. which was rejected, against which the present C.R.P. has been filed.

(2.) MR.A.L.Namasivayam, learned counsel for the petitioners submitted that this was a case where an illegal decree was sought to be executed. The respondent purchased this property in an auction under Sec.69 of the Transfer of Property Act, the property having been mortgaged by Kanakavalliammal. According to the learned counsel for the petitioners, the sale itself is void. The next submission that was made by the learned counsel is that assuming without admitting that the sale was valid. It was valid only in respect of 1/8th of the property, which is the share to which the judgment-debtor was entitled to. The decree cannot be executed against the remaining 7/8th, which belongs to the petitioners. Learned counsel also submitted that even if the original judgment-debtor did not plead these facts in her defence,the Court should intervene in the interest of justice. He relied on the following decisions: (1) Urban Improvement Trust, Jodhpur v. Gokul Narain (dead) by L.Rs. and another Urban Improvement Trust, Jodhpur v. Gokul Narain (dead) by L.Rs. and another Urban Improvement Trust, Jodhpur v. Gokul Narain (dead) by L.Rs. and another (1996)4 S.C.C. 178; (2) Egmore Benefit Society, 3rd Branch Ltd. by Secretary and Treasurer, T.G. Damodara Mudaliar v. K.Aburupammal Egmore Benefit Society, 3rd Branch Ltd. by Secretary and Treasurer, T.G. Damodara Mudaliar v. K.Aburupammal Egmore Benefit Society, 3rd Branch Ltd. by Secretary and Treasurer, T.G. Damodara Mudaliar v. K.Aburupammal (1943)1 MLJ. 92: A.I.R. 1943 Mad. 301; (3) V.P.Padmavathi Ammal and others v. P.S.Swaminatha Iyer and others V.P.Padmavathi Ammal and others v. P.S.Swaminatha Iyer and others V.P.Padmavathi Ammal and others v. P.S.Swaminatha Iyer and others (1975)2 MLJ. 27: A.I.R. 1975 Mad. 343; (4) Satyapal Uttamchand Chowdhary v. Rukayyabai Huseinbhai Bandukwala and another Satyapal Uttamchand Chowdhary v. Rukayyabai Huseinbhai Bandukwala and another Satyapal Uttamchand Chowdhary v. Rukayyabai Huseinbhai Bandukwala and another A.I.R. 1993 Bom. 203; (5) S.P. Chengalvaraya Naidu (died) by L.Rs. v. Jagannath (died) by L.Rs. and others S.P. Chengalvaraya Naidu (died) by L.Rs. v. Jagannath (died) by L.Rs. and others S.P. Chengalvaraya Naidu (died) by L.Rs. v. Jagannath (died) by L.Rs. and others A.I.R. 1994 S.C. 853; (6) V.K.K.Peer Bathummai Beevi v. Nagur Meerammah Beevi and others V.K.K.Peer Bathummai Beevi v. Nagur Meerammah Beevi and others V.K.K.Peer Bathummai Beevi v. Nagur Meerammah Beevi and others A.I.R. 1937 Mad. 108 and finally (7) Annapooni v. Janaki (1995)1 L.W. 141. According to the learned counsel, the trial Court had ample powers to intervene when it finds that a decree suffers from an error of law apparent on the face of the record due to the non-application of the mind of the Court which passed the decree.

(3.) A perusal of this order shows that even in the counter filed by Kanakavalliammal. She merely says that the suit property had been sold for a very low price. There is no reference to her children being the actual owners of the suit property. In the Sec.47 application the petitioners challenged the validity enforceability and executability of the decree on two grounds. One is that Kanakavalliammal was not the absolute owner of the property since it originally belong to Vaduvaambal and thereafter, she had only 1/8th share in the property and the petitioners had 7/8th share. The other allegation is that there was no auction. Everything was fraudulent and that the petitioner had no notice of the mortgage auction. Therefore, according to them, the Court could under Sec.47, C.P.C. enquire into their claims.