KAMALAM Vs. V GOPAL

JUDGEMENT

(1.) THESE two civil revision petitions have a long history; but the point that consideration is a very simple one. Unfortunately, it has been overlooked by the court, which has resulted in the filing of these two revision petitions.

(2.) CHRONOLOGICALLY, there was a mortgage by deposit of title deeds on 10.6.1959 in Pandiyan Bank Limited, which was subsequently merged with Canara Bank. There was for recovery of certain money against the mortgagors by a third party-creditor in O.S.No.100 of 1960 on the file of Sub Court, Salem, which ended in a decree. In execution of the in E.P.No.143 of 1964 items 2 to 5 of the suit properties were brought to sale. While mortgagee Pandiyan Bank filed a suit O.S.No.185 of 1964, Sub Court, Salem for enforcement of the mortgage. When the suit was pending, defendants 2 to 10, who were the mortgagors, entered into an agreement of sale with respect to item 4 thereof on 11.11.1964 M/s.Rajendra Mills Limited. The said Rajendra Mills Limited is the petitioner in C.R.P.No.245 of 1989 and hereafter, it will be referred to as "the 1st petitioner. There was a preliminary decree in the suit on 1.3.1965. On 27.3.1965, defendants 2 to 10 executed a sale favour of the 1st petitioner with a direction to pay a sum of Rs.85,000 to the 21.7.1966, all the properties were brought to sale in court auction in E.P.No.143 of the money-decree-holder. They were purchased by one Kandasami Chettiar. On 31.7.1966, final decree was passed in the mortgage suit and the Bank filed R.E.P.No.1 of 1967 of the mortgaged properties. On 6.2.1967, the 1st petitioner got the sale deed compulsorily registered in its favour with respect to item 4. Thereafter, the 1st petitioner R.E.A.No.443 of 1967 in R.E.P.No.143 of 1964 for setting aside the court auction sale 21.7.1966 with respect to item 4. The auction purchaser had taken possession on through court, but on 28.4.1973, the application filed by the 1st petitioner to set sale was allowed. On 1.12.1973, the auction purchaser sold items 2, 3 and 5 Sahadevan, who is the 10th respondent in R.E.P.No.1 of 1967. Sahadevan filed R.E.A.No.258 of 1976 for impleading him as a party to the execution proceedings, but it was dismissed he filed C.M.A.No.556 of 1976 in this Court, which was allowed. Consequently, impleaded as the 10th respondent in R.E.P.No.1 of 1967. On 23.6.1980, the petitioner C.R.P.No.140 of 1989 purchased items 2, 3 and 5 from Sahadevan and his sons petitioners are referred to hereafter as "petitioners 2 and 3". On 4.8.1980, the Subordinate Judge, Salem, directed in R.E.P.No.1 of 1967 the sale of items 1 and 4 in the first instance. The 1st petitioner filed C.R.P.No.2337 of 1980 against the said order after getting leave this Court to file the same in C.M.P.No.8680 of 1980. The said revision petition was allowed on 7.9.1982. The matter was remanded to the executing court. This Court directed the petitioner to implead himself as a party to the execution proceedings. The 1st petitioner filed R.E.A.No.223 1983 for impleading it a party. That petition was ordered and the 1st petitioner impleaded. One of the judgment-debtors, by name, V.Gopal, who is the 1st respondent these revision petitions, filed R.E.A.No.850 of 1983 for appointment of a Commissioner make local inspection, etc., and R.E.A.No.851 of 1983 for the appointment of a receiver items 2, 3 and 5. He did not implead petitioners 2 and 3 as parties to those applications. may be noted that item 4 is not one of the properties, for which, appointment of was sought. Both petitions were ordered on 1.10.1983. Petitioners 2 and R.E.A.Nos.881 and 883 of 1983 for setting aside the orders made in R.E.A.Mo.850 and of 1983. Those applications were allowed on 6.1.1984. The executing court found that 1st respondent was guilty of abuse of process of court in filing R.E.A.Nos.850 and 1983. The 1st respondent filed C.R.P.Nos.738 and 739 of 1984 in this Court against orders in R.E.A.Nos.881 and 883 of 1983. But the revision petitions were not ultimately and they were dismissed on 27.6.1986. The first respondent also R.P.Nos.736 and 737 of 1984 against the orders in R.E.A.Nos.850 and 851 of 1983, were consequential to the orders in R.E.A.Nos.881 and 883 of 1983. This Court set those orders on the ground that they were non speaking orders and remanded the same fresh consideration. Obviously, it was not brought to the notice of this Court that the in R.E.A.Nos.850 and 851 of 1983 were consequential to the orders in R.E.A.Nos.881 883 of 1983.

(3.) THE C.M.A. was presented in this Court on 3.8.1987 and taken on file on 4.8.1987. matter was posted for admission on 5.8.1987. On that day, the learned Judge who heard appeal for admission, passed the following order: "It is seen that this Court in C.R.P.No.737 of 1984 directed the learned Subordinate Judge dispose of the matter on merits after setting aside the order already passed in E.A.No.850 1983 on 6.1.1984. THE learned Judge instead of complying with the order passed Court and disposing the matter on merits, has directed the petitioner to implead the parties in this petition by 10.8.1987. It is brought to my notice by learned counsel appellant that except the decree holder, respondents 2 to 9 were already ex parte regards respondent No. 10 is concerned, he has already parted with the property and Court has already found him not entitled to marshalling and so they are not necessary parties in the present proceedings. In the circumstances the court below is directed dispose of the application on merits without insisting to implead the other respondents appeal is ordered accordingly." Thus, the learned Judge allowed the appeal even without admitting the appeal or notice to the respondents therein. THE matter was brought to this Court again mentioned " on 23.10.1987. It was represented to the learned Judge that there mistake in the number of the application which was stated as R.E.A.No.850 of 1983 correct number was R.E.A.No.851 of 1983. THEreupon, the learned Judge directed correction to be made and also gave a direction that the Subordinate Judge should the matter and dispose of the same positively on 9.11.1987.