GNANARATHINA BAI Vs. MUTHIAH

JUDGEMENT

(1.) The unsuccessful defendants 1 and 2 in both the Courts below are the appellants.

(2.) The case in brief is as follows :- The plaintiff filed a suit for declaration that the execution proceedings in O.S. 1008 of 1971 on the file of District Munsif Court, Nagercoil with reference to the sale of the plaint schedule property in favour of the plaintiff up to and inclusive of the delivery of possession are fraudulent, illegal and void and sought a decree for recovery of a sum of Rs. 10,492-65 (Rs. 7852-15 principal and Rs. 2640-50 interest) together with future interest at 12% till decree and thereafter at 6%. The plaintiff is employed as a mechanic in Nesamani Transport Corporation and the second defendant is the husband of the first defendant, who is also working as electrician in the same Corporation. They are well known to each other and were friends. For the money due from the third defendant to the first defendant, the first defendant filed a suit in O.S. No. 1008 of 1971 on the file of Additional District Munsif Court, Nagercoil and obtained a decree. The first defendant/decree-holder with the assistance of the 2nd defendant attached some properties alleging to be the properties of the 3rd defendant and brought them for sale after due publication and auction was proclaimed on 7-10-1982 and as there was no bidder, it was brought for sale on 28-11-1982. The 2nd defendant brought to the notice of the plaintiff about the Court sale of the properties in three items and advised him to bid item No. 1 which is scheduled in the plaint and it belonged to the third defendant the judgment-debtor in that suit. Believing the representation of defendants 1 and 2, the plaintiff successfully bid in the auction and took the property in the Court auction held on 25-11-1982 for Rs. 7,105/- and deposited 1/4th purchase money as well as poundage etc. The plaintiff thereafter applied for loan in the Corporation and paid the balance amount on 4-12-1982. The plaintiff also deposited a sum of Rs.504/- towards stamp paper and the sale was confirmed on 29-1-1983 and the sale certificate was also issued. The plaintiff took steps for getting delivery of the property through Court and filed execution application in E.A. No. 1031 of 1983 and at the time of delivery also the 2nd defendant intervened and accompanied the plaintiff and the Amin and pointed out paddy field which the plaintiff thought belonged to the judgment-debtor, namely, the 3rd defendant. The plaintiff came to know about the fraud played only about a month after delivery. The plaintiff went to the spot on 30-9-1983 to do agricultural operation and there was obstruction by the strangers. On an enquiry with the local revenue authority disclosed that there was no property available belonging to the third defendant as covered by the sale certificate and that a huge fraud has been practised on the plaintiff by defendants 1 and 2 with the heir of the third defendant. Defendants 1 and 2 have attached a property non-existent in the name of the 3rd defendant and have proclaimed it for sale and have fraudulently induced the public and plaintiff to purchase it in Court auction. The plaintiff took copy of the settlement register and also correlation register copy and found that in the revenue records, the third defendant is not entitled to any property as covered in R.S. No. 901 of 1977. Defendants 1 to 3 are mutually and jointly responsible for the fraud played. The money deposited into the Court by the plaintiff has been withdrawn both by the defendants 1 and 3 and they are not entitled to enrich themselves out of their fraudulent acts. The first defendant had withdrawn Rs.3,762/- and the balance amount of Rs. 3,343/- was realised by the third defendant. Hence, the suit. Defendants 1 and 2 contended that neither the 1st defendant nor the 2nd defendant informed the plaintiff about the sale or advised him to bid the auction. The allegations are invented after long time to suit his own case. The plaintiff had purchased the property on his own accord. They did not accompany the plaintiff to the spot to take delivery. No fraud was ever committed by them in conducting the sale. The plaintiff ought to have filed a petition under O. XXI, Rule 91 of Civil Procedure Code within a prescribed period to set aside the sale and then only the auction purchaser is entitled to refund of money. The present suit is barred by S.47 of Civil Procedure Code. The plaintiff already filed a petition under O. 47, but it was dismissed and, as such, the present suit is barred by res judicata. Further the suit is also barred by limitation. The third defendant contended that the first defendant filed a suit against him as O.S. 1008 of 1971 and obtained a decree. She also took out execution petition and attached 3 items of properties and brought to sale of the items. Item No. 1 alone in the case was sold under Court auction for the satisfaction of the decree amount and items 2 and 3 were left out and they were released from attachment. The Court sale for item No. 1 was conducted on 25-11-1982 and the plaintiff was the successful bidder and his auction was confirmed on 29-1-1983. The auction purchaser before purchasing the property perused all the records, visited the property, made proper enquiries and bid it in auction. After confirmation of auction, he obtained sale certificate from the Court and got delivery of the property on 22-7-1983 through Court. The plaintiff filed E.A. 1-31 of 1983 for correction of the survey number. The plaintiff attempted to include 2 other items of the properties, which were not sold out in the Court auction and it was dismissed on 7-11-1985. Then the plaintiff filed another application as E.A. 485 of 1984 to set aside the sale and to direct the first defendant to deposit the money which was withdrawn from Court and that was also dismissed on 7-11-1985. The present suit was filed on 17-9-1985. The principles of caveat emptor is applicable and the plaintiff is estopped from making the contentions. The third defendant is not at all responsible for any fraud played on the plaintiff and defendants 1 and 2. The 3rd defendant never withdrew or received any money from Court and he never committed any fraudulent act. The 3rd defendant is not liable to pay any amount much less any interest. There is no privity of contract between the plaintiff and the 3rd defendant and he is an unnecessary party to the suit. The trial Court framed 6 issues and on behalf of the plaintiff. P.Ws. 1 to 5 were examined and Exs. A-1 to A-13 were marked and on the side of the defendants, D.Ws. 1 and 2 were examined and Exs. B-1 to B-5 were marked. The trial Court decreed the suit and aggrieved against this, defendants 1 and 2 preferred A.S. 39 of 1988 on the file of Sub-Court, Nagercoil and the learned Judge after hearing the parties, dismissed the appeal and aggrieved against this, the present second appeal is filed.

(3.) At the time of admission of the second appeal, this Court framed the following substantial question of law for consideration : Whether the learned subordinate Judge is right in holding that the present suit is maintainable in the face of O. 21, R.90 and S. 47 of Civil Procedure Code?