MEENAKSHI Vs. MURUGAN

JUDGEMENT

(1.) THE wife of the judgment-debtor, in O. S. No. 121 of 1978 on the file of the Principal District Munsif's Court, nagercoil, having failed in her attempt to resist the delivery petition filed by the auction purchaser/respondent in E. A. No. 180 of 2002, is the revision petitioner.

(2.) IN the year 1978, the plaintiff in o S No. 121 of 1978, has filed the suit against one Rajappan and obtained a preliminary decree for recovery of money, based on a mortgage, on 22. 1. 1979, followed by final decree on 23. 8. 1979. Pursuant to the decree, the decree holder, by filing E. P. No. 243of 1981, brought the property of the judgment-debtor for sale, in which the respondent herein participated and purchased the property in the court auction sale, held on 13. 11. 1980, which was confirmed on 6. 3. 1982, followed by the issuance of sale certificate on 18. 6. 1982. As submitted before this Court, the son of the judgment-debtor filed a suit for partition in the property sold in the Court auction, in O. S. No. 840 of 1980, including the auction purchaser also as a party, on the file of the Additional district Munsif's Court, Nagercoil. The said suit was dismissed by the learned Additional District Munsif, nagercoil, but on challenge before the Sub-Court, Nagercoil, in A. S. No. 153 of 1982, a decree was granted, by allowing the appeal, which was challenged in S. A. No. 1354 of 1983 on the file of this Court. This court, as per the judgment dated 4. 3. 1998, set aside the decree granted by the first appellate Court, restoring the judgment of the trial Court in dismissing the suit, thereby confirming the sale and the consequential proceedings.

(3.) AFTER the disposal of the said suit, which reached finality, the respondent/auction purchaser had filed E. A. No. 38 of 2000 for delivery of property, impleading the heirs of original judgment-debtor, since he died. In view of the dismissal of the previous suit filed by the son of the judgment-debtor, the Legal Representatives of the judgment-debtor cannot have any valid objection for the delivery of the property. However, the revision petitioner, has filed e A. No. 180 of 2002, invoking Section 47 of the Code of Civil Procedure Code, as if the auction purchaser is not entitled to take actual delivery of the property, because of the legal position, available in Section 23 of the Hindu succession Act, that the property being a dwelling house, she is having a right of residence as the widow of late Rajappan and in this view, if at all, only a symbolic delivery could be ordered, not actual delivery.