A MARIASUSAI Vs. NATCHIARAMMAL

JUDGEMENT

(1.) THIS civil miscellaneous appeal arose out of an order in E.A.No.487 of 1992 in E.P.No.91 of 1990 on the file of the learned Prinicpal Subordinate Judge, Tirunelveli, dismissing the application filed under O.21, Rule 89 and Sec.151, C.P.C. for setting aside the sale in respect of the third item of the execution petition.

(2.) ONE Mariasusai filed an affidavit in support of the application E.A.No.487 of 1992 contending as follows: The defendant Iyemperumal Nadar, is the father of A.Deivigalingam and A.Natarajalingam both residing at No.82-A Kavalpirai street, Tirunelveli town. The abovesaid two persons filed O.S.No. 111 of 1982 in the lower court against the respondent and on 31.10.1988, a preliminary decree was passed by which the third item of the property mentioned in the E.P., was allotted to the above two persons and others. On the strength of the preliminary decree, the abovesaid two persons had offered the said third item for sale to Mariasusai, the third party in E.A.No.487 of 1992. The third item of the property would be a total extent of 12.55 cents. Along with that item, the abovesaid two persons also agreed to sell another portion of property measuring 3.5 cents and the price money for sale was fixed as 3 lakhs. The agreement of sale was entered into on 10.6.1990 between the third parly and the abovesaid two persons and on that day, the third party has paid Rs.2,000 towards advance amount. Again on 16.7.1990, the third party has paid a sum of Rs.60,000 towards advance amount. Totally he has paid Rs.65,000 as advance. According to the third party, the third item of the property would easily fetch a sum of Rs.2.25 lakhs.

(3.) THE 6th respondent in the E.P. who is the auction purchaser has filed a counter contending as follows: THE petition to set aside the sale has been filed in collusion with the defendant. THE defendant's son Deivigalingam and Nalarajalingam filed a petition under O.21, Rule 56 and Sec.151, C.P.C. In E.A.Nos.5.38 of 1991 and 539 of 1991 before the property was brought to sale and those petitions were dismissed on 6.3.1992 and those persons filed these collusive petitions in order to defeat the rights of the plaintiff. THE agreement said to have been executed by the abovesaid two persons is not valid. THEre is no bona fide in the petition for setting aside the sale and the agreement also is not true and it was fabricated for the purpose of the case and the petition for setting aside the sale is also barred by limitation. THE sale has taken place on 24.4.1992 and the petition for setting aside the sale should have been filed within 25.6.1992 and so, under Art.127 of the Indian Limitation Act, the petition is barred and the decree amount has not been deposited as per the 0.21, Rules 89 and 92(2), C.P.C. THE auction purchaser submits that there is no violation of any of the provisions of C.P.C. and so that the sale has to be confirmed and the petition to set aside the sale has to be dismissed.