A JAYATHILAKAM Vs. S DHANASEKARAN

JUDGEMENT

(1.) THIS revision is directed against the order passed in R.E.A.No.788 of 1992 in R.E.P.No.177 of 1989 on the file of the Additional Subordinate Judge, Salem. The petitioner herein is the judgment-debtor. The respondent/ decree-holder obtained a decree against the judgment-debtor in the suit O.S.No.169 of 1983. The decree is dated 17.3.1989. The execution petition was filed on 11.9.1989. The property was brought to sale on 15.10.1992 and there was no bidder. The decree-holder filed R.E.A.No.788 of 1992 under O.21, Rule 72 of the Code of Civil Procedure, for permission to bid and set-off, and permission was granted by the executing court. It is against that order, the present revision is filed by the judgment-debtor.

(2.) BEFORE this Court, the learned counsel appearing for the petitioners submitted that the executing court was not correct in granting permission to the decree-holder to bid and set-off in the second sale. According to the learned counsel, in view of the decision reported in Venkitammal v. Janakiammal, (1971)1 M.L.J. 366, permission to bid and set-off should be granted to the decree-holder only at the time when the property was brought to sell for third time. As against this decision, the learned counsel appearing for the respondent/ decree-holder relied upon a decision of this Court, rendered by Kailasam J. (as he then was) in Sivathi Ammal v. Arulayee Animal, (1973)2 M.L.J. 323: A.I.R. 1974 Mad 34: 86 L.W. 560, wherein it was held that absence of any bidders in prior two sales cannot be a condition precedent, for granting permission to bid and set-off to the decree-holder. It was, therefore, submitted that according to the facts, arising in the present case, after giving notice to the judgment-debtor, after hearing the counsel appearing for the judgment-debtor and considering the other circumstances, the court granted permission to the decree-holder to bid and set-off in the second sale. The learned counsel further pointed out that in view of the provisions contained in O.21, Rule 72 of the Code of Civil Procedure, no condition precedent can be imposed before granting permission to bid and set off to the decree-holder.

(3.) IN the case of Venkitammal v. Janakiammal, (1971)1 M.L.J. 366, the learned Judge of this Court (as he then was) has held as under: