BALAKRISHNAN Vs. KRISHNAMOORTHY

JUDGEMENT

(1.) THIS is an appeal under Order 43, rule 1, Civil Procedure Code, by the respondent Balakrishnan, against the judgment and decree, dated 24th August, 1977 in, A.S. No. 146 of 1977, on the file of the Court of the learned Principal District Judge, Pondicherry, allowing the appeal and setting aside the judgment and decree of the trial Court, and remanding the matter to the trial Court for fresh disposal in accordance with the law. The court-fee paid in the appeal was directed to be refunded. The appeal was against the order and decree, dated 5th March, 1976, in E.A. No. 65 of 1972 in E.P. No. 25 of 1972, passed by the learned Subordinate Judge, Karaikkal.

(2.) E.P. No. 25 of 1972 in A.S. No. 38 of 1967, E.A. No. 26 of 1972 in E.P. No. 25 of 1972 and E.A. No. 65 of 1972 in E. P. No. 25 of 1972, were disposed of altogether by the learned Subordinate Judge, Karaikkal on the 5th March, 1976. We are concerned only with E.A. No. 65 of 1972 in E.P. No. 25 of 1972.

(3.) THE proceedings out of which the appeal, A.S. No. 146 of 1977 arises were laid under the following circumstances. One Balakrish-nan, the appellant before this Court, and who was the respondent in the said appeal A.S. No. 146 of 1977, executed a mortgage deed in favour of one Govindasami Pillai. THE latter took steps for recovery of money by way of Court auction sale. During the proceeding he passed away and the proceeding was continued by his legal representative, namely, the respondents before this Court and the appellant in A.S. No. 146 of 1977. In the first auction, the highest bidder was one Deivasagayam for Rs. 15,000. In the -surenchure- auction held on 18th August, 1968, the sale was in favour of Anjalai. Since she failed to pay the sale amount, a fresh sale on:felle enchere-, was ordered in which the fourth appellant before the appellate Court became the auction purchaser for an amount of Rs. 8,000 on 15th March, 1972. THE sale has been confirmed and sale certificate issued in favour of the auction-purchaser. It appears also that possession was given by the Amin and at the stage of recording the delivery of possession by the Amin two petitions were filed, one by Bala-krishnan and the other by Anjalai. Bala-krishnan asked for setting aside the sale in favour of the fourth appellant and to stay the proceedings. Anjalai stated that she was still in possession of the property and prayed for an injunction against the appellants restraining them from interfering with her peaceful possession . Both the petitioners attacked the sale in favour of the fourth appellant on the ground that it was ordered under the French Procedure which was not then in force and also on the ground that even under that procedure, the sale was irregular as some of the essential formalities of French Law were not followed. THE trial Court finding that the appellants raised new questions of some importance treated these applications as suits under section 47, Civil Procedure Code, but failed to recover the corresponding court-fees. It held that since the sale in favour of the fourth appellant took place in the year 1972, after the coming into force of the Indian Civil Procedure Code, the sale should have been conducted in accordance with the principles of Indian Civil Procedure Code, that many of the essential formalities embodied in the latter Code were not followed and accordingly decided that the sale was not valid. In the result it dismissed the application of Anjalai and allowed the application of Balakrishnan, the appellant herein by order, dated 5th March, 1976. It is against that order that the appeal A.S. No. 146 of 1977 was preferred before the lower appellate Court only by the legal representatives of the original creditor.