J MAHESWARI Vs. BALARAMAN

JUDGEMENT

(1.) This Civil Revision Petition is filed challenging the Order and decretal order dated 2.5.2010 passed in Unnumbered E.A.SR. No. 54968 of 2010 in E.P. No. 520 of 2006 in O.S. No. 9612 of 1996 on the file of the X Assistant Judge, City Civil Court, Chennai.

(2.) The brief facts of the case is as follows:-The respondent/defendant borrowed a sum of Rs. 1,75,000/-promising to repay the same with interest at the rate of 12% per annum under a promissory note and created an equitable mortgage by deposit of title deeds of certain property in favour of the revision petitioner/plaintiff to secure repayment of the aforesaid amount. Since the loan amount was not repaid, the suit O.S. No. 9612 of 1996 was filed for recovery of the principal amount with 12% interest and in default to sell the property for realisation of the amount. A preliminary decree was passed on 28.11.2000 together with interest at the rate of 12% per annum from the date of preliminary decree till date of realisation of the decree amount as follows:-

(3.) Based on the final decree, on 4.10.2004, Execution Petition No. 520 of 2006 was filed claiming interest upto the date of the execution petition. Thereafter, the sale was effected on 9.9.2009 and the proclamation of sale was made on 31.7.2009. The proclamation of sale clearly indicated that the amount due to the revision petitioner/plaintiff/decree holder will be a sum of Rs. 5,77,568.25. The property when put on sale fetched a total sum of Rs. 19,60,000/-. The sale was confirmed and the auction purchaser deposited the entire amount in course of time. Thereafter the revision petitioner/plaintiff filed an application along with affidavit on 27.11.2009 for payment of Rs. 5,77,568.25 based on the amount deposited pursuant to court auction. This application was filed under Rules 163 and 165 of the Civil Rules of Practice.