MUTHA PUKHRAJ RATANJEE Vs. GANESH MULL ADAJI

JUDGEMENT

(1.) THIS civil revision petition, at the instance of the plaintiff/decree-holder/ auction-purchaser in O. S. No. 116 of 1967, City Civil Court, Madras, is directed against the order of the Court below in E. A. No. 5 of 1970 in M. C. C. C. O. S. No. 116 of 1957, dismissing an application filed by him under Order 21, rule 95, Code of Civil Procedure, praying for delivery of possession of the property.

(2.) THE circumstances giving rise to the civil revision petition may be stated as under: THE respondent herein executed a promissory note in favour of petitioner on 1st January. 1964 on the footing of which O. S. No. 116 of 1967 on the file of the City Civil Court, Madras, was instituted by the petitioner and a decree therein was also passed in his favour on 11th November, 1968. With a view to realise the amounts due under the decree so obtained, the petitioner filed on 31st August, 1970 E. P. No. 5 of 1970 for attachment and sale of the immovable property belonging to the respondent. On 5th October, 1970, the property of the respondent was attached and the petitioner after obtaining (in E. A. No. 302 of 1972) from Court leave to bid and set off, became the purchaser of the property at the sale held on 18th December, 1972. On 17th January, 1973, the respondent herein filed an application under Order 21, rule 90, Code of Civil Procedure, to set aside the sale and along with that application filed E. A. No. 82 of 1973 for accepting security. THE application in E. A. No. 82 of 1973 was dismissed on 12th September, 1974, when the application to set aside the sale filed under Order 21, rule 90, Code of Civil Procedure, had remained un-numbered. Consequent to the dismissal of the application in E. A. No. 82 of 1973 on 12th September, 1974, the Court-auction-sale in favour of the petitioner was also confirmed on 12th September. 1974. THEreupon, on 10th February, 1975, the petitioner applied in E. A. No. 61 of 1975 for delivery of possession of the property purchased by him in the Court-auction-sale held on 18th December, 1972. On 13th February, 1975, on that application, delivery was ordered by 13th March, 1975. On 13th March, 1975, since the delivery warrant was not returned, the Court directed that the delivery warrant be awaited and the matter was posted to 21st March, 1975. On 21st March, 1975, the Court passed the further order to the effect that the property was not delivered for want of police aid and breaking open of the lock. THE matter was further adjourned to 2nd April, 1975, for steps. On 24th March, 1975, an application was filed by the petitioner in E. A. No. 139 of 1975 to make available police aid and that application was allowed on 2nd April, 1975, and the property was directed to be delivered by 29th April, 1975. Meanwhile, on 1st April, 1975, the respondent herein instituted O. S. No. 2408 of 1975, City Civil Court, Madras, for cancellation of the decree in O. S. No. 116 of 1967 and in I. A. No. 6767 of 1975 in O. S. No. 2408 of 1975, the respondent prayed for an interim injunction restraining the petitioner from prosecuting further proceedings in E. P. No. 5 of 1970. That matter was fixed for hearing on 15th April, 1975. However, in E. A. No. 61 of 1975, on 29th April, 1975, the Court passed the following Order:

(3.) THE learned District Judge, Chengalpattu, who enquired into this application was of the view that the endorsement made on 29th April, 1975 in E.A. No. 61 of 1975 which led to the closure of E. A. No. 61 of 1975 cannot be correct, that after the termination of the proceedings initiated by the respondent in E. A. No. 465 of 1976 under Order 21, rule 90, Code of Civil Procedure, on 20th November, 1976 there was no impediment whatever for the petitioner to take delivery of possession and that the application in E. A. No. 512 of 1980 was barred. Dealing with the question whether the application filed by the petitioner can be regarded as one for revival or continuation of the earlier application in E. A. No. 61 of 1975, the learned District Judge concluded that oh the facts in this case the application filed by the petitioner cannot be said to be one for revival of the earlier application for delivery. On these conclusions, the application was dismissed. Challenging the correctness of this order, the petitioner has preferred this civil revision petition.