USHA DEVI Vs. S KOLANDASAMY

JUDGEMENT

(1.) THIS revision is canvassed challenging the judgment and decree of the Principal District Judge, Erode, made in C. M. A. No. 64 of 1992, dated 17. 9. 1993, whereby granting injunction in favour of the respondents herein and restraining the revision petitioner from taking delivery of possession of the suit property, which was rejected by the learned First additional District Munsif in I. A. No. 1584 of 1992.

(2.) THE revision petitioner is the auction purchaser of the suit property, furnished with the sale certificate issued by the executing court, namely, the Principal District Munsif Court of Erode as the suit property was purchased by her in the court auction held on 22. 1. 1992. THE suit property was the mortgaged hypotheca given by the first defendant in the suit, being the father of the plaintiffs, who are the respondents herein, and the other two sons, in the year 1974, by executing a simple mortgagee. However, which resulted in filing the suit by the mortgage passing a decree on contest, followed by the preliminary and final decree and then the suit property was brought to court auction sale and after completing all the formalities, it was sold out in the court auction and purchased by the revision petitioner herein as aforementioned. In the meanwhile, a partition suit was filed by the plaintiffs in the year 1981 with regard to the suit property and though it was dismissed before the trial court, it was decreed in appeal in A. S. No. 5 of 1988. It was stated that l/4th share of the plaintiffs was declared in the appeal. However, it appears that further proceedings have not been taken in the said appeal. When the court auction purchaser, the revision petitioner herein, after getting the sale certificate in her favour was about to take delivery of possession through legal process anticipating the same, the present suit has been filed for the relief of declaring that the court auction sale held in favour of the revision petitioner dated 22. 1. 1992 is not valid, null and void and not binding on the plaintiffs. In the suit, the auction purchaser was the second defendant. THE said suit was filed by the two sons of the first defendant, who was the mortgagor in the first suit, It is stated that the first defendant has to more sons and it appears that they have not joined the litigation but however, two sons alone have filed the suit. In the said suit, i. A. No. 1584 of 1992 was filed by the two sons of the judgment debtor, praying for the issuance of temporary injunction restraining the revision petitioner/ respondent not to take delivery of the possession of the suit property either by legal process or otherwise. After contest, the trial court dismissed the said petition on merits and thereby declined to grant the interim order of injunction. Against which, an appeal was preferred and in the appeal, the learned Principal District Judge, Erode, set aside the order of the learned trial Judge but however, granted interim injunction till the disposal of the suit. This lower appellate court's finding is being canvassed in this revision as aforementioned.