A GANAPATHI Vs. NATARAJAN

JUDGEMENT

(1.) Some interesting questions fall for consideration in this second appeal. They are (1) whether the remedy to set aside, or declare void, the court auction-sale for non-service of notice under Order 21, rule 66 of the CODE OF CIVIL PROCEDURE, 1908 (hereinafter referred to as the Code) by the judgment debtor or his representative lies only in an application under section 47 of the Code and (2) whether in a suit by a court auction purchaser for recovery of possession, the judgment debtor or his representative is entitled to resist the suit on the score that the court auction sale is void"

(2.) The admitted facts relevant for the purpose are given below. The appellant is the first defendant in O.S.No. 488 of 1975, District Munsifs Court, Cuddalore, brought by the first respondent/plaintiff The second respondent is the second defendant in that suit. The first respondents father obtained a money decree against one Kannan in O.S.No. 632 of 1962, District Munsifs Court, Cuddalore and had attached the property of the said Kannan in E.P. No 1944 of 1965. One Nagalingam filed a claim petition. E.A. No. 202 of 1966 and the same was allowed. Consequently, the attachment was raised. On 27th February, 1967, Nagalingam sold the said property to Murugesan the second defendant in O.S.No. 488 of 1975. On 15th March, 1975, the said Murugesan sold the property to the appellant. In the meanwhile the first respondent, aggrieved against the claim order made in E.A. No. 202 of 1966, instituted O.S. No. 668 of 1967 against Nagalingam and Murugesan, to set aside that order and the said suit was deereed. Immediately, the first respondents father took proceedings in execution to have the attached property, sold. It is enough to refer to the last E.P. No. 1154 of 1973 in which the property was sold in court auction on 22nd February, 1974. The first respondent was the auction purchaser. The said sale was confirmed on 7th June, 1964. In E.A. No. 2490 of 1974 delivery was ordered.

(3.) The plaintiff claims that he took delivery of the suit property on 30th November, 1974 under Exhibit A-3 and that just before the institution of the suit, the appellant/Ist defendant claiming title under the second respondent trespassed into the property. But according to the appellant the property continued to be in the possession and enjoyment of himself and his predecesser-in interest. He also challenged the sale as void, as no notice was served on the judgment-debtor under Order 21, rule 66 of the Code in E.P.No. 1154 of 1973. The lower court accepted the defence that no notice was served on the judgment-debtor therein, that the sale is void and as the plaintiff had no title to the property it, therefore, dismissed the suit with costs. It may be useful to point out that the trial court came to the conclusion that no notice was served because of the following endorsement in Exhibit B-13 R.P. absent. Set ex parte. Sale proclamation 12th November, 1973. Ini K.P. Prl. D.M. 3rd November, 1973 On the strength of authority in Tarapore and Company v. VfO. Tracters Export1, however, the learned Subordinata Judge, Cudda-lore allowed the appeal and decreed the suitwith costs throughout. The learned Subordinate Judge held that the sole remedy of the judgment-debtor or his representative is to resort to Order 21, rule 90 or section 47 of the Code and in this suit, the appellant or his predecessors-in-title is not entitled to challenge the court auction sale.