RADHABAI AMMAL Vs. KRISHNAMOORTHY

JUDGEMENT

(1.) THE revision petitioner is the first defendant/first judgment-debtor. This Revision Petition is directed against the dismissal of the petition E. A. No. 10 of 2003 in E. P. No. 126 of 1996 on the file of the District Munsif Court , Madurantakam in Chengalpattu Principal sub Court O. S. No. 42 of 1987, as per order dated 27. 1. 2003.

(2.) THE revision petitioner/first defendant/first judgment-debtor filed the petition E. A. No. 10 of 2003 under Order 34, Rule 5 read with Order 34, Rule 15 and Section 151 C. P. C. to set aside the sale held on 17. 3. 1997 and to terminate E. P. No. 126 of 1996, recording full satisfaction of the decree in O. S. No. 42 of 1987.

(3.) THE said Execution Application was resisted in the counter by the respondent/decree-holder, mainly on the ground that the provision as sought by the revision petitioner/first judgment-debtor to deposit the amount decreed in the suit into Court, after the Court auction sale held on 17. 3. 1997 is incorrect. Further, Order 34, Rules 5 and 15 C. P. C. is not applicable, and the same is applicable only in the cases of mortgage. It is also stated that as per Section 65 of the Code of Civil Procedure, the suit properties shall be deemed to have vested in the Court auction purchaser, namely, the decree-holder/respondent herein, from the time when the suit properties were sold and not from the time when the sale becomes absolute. It is also stated that as per the provision made under Article 127 of the limitation Act, the petition to set aside the Court auction sale is not filed within 30 days from the date of sale, and so the petition to set aside the Court auction sale cannot be entertained under Order 21, Rule 89, C. P. C. THE further facts, which led to the filing of the suit, which culminated into passing of the decree, have also been stated therein. Since, for want of bidders, the suit properties could not be sold in Court auction, despite 4 applications were filed to reduce the upset price, the decree-holder filed a petition E. A. No. 14 of 1994 on 5. 1. 1995 praying permission to the decree-holder for bid and set off. After due enquiry, the executing Court permitted the respondent/decree-holder to purchase the suit properties in Court auction sale held on 17. 3. 1997. THE judgment-debtor has not filed the petition within 30 days to set aside the Court auction sale, and so Order 34, Rules 5 and 15 c. P. C. is not applicable. It is also stated therein that once the Court auction sale is held and no application is filed to set aside the sale by the revision petitioner/judgment-debtor within 30 days from the date of sale, it cannot be questioned by the judgment-debtor now. THE confirmation of sale is only a formal procedure and the matter is between the Court auction purchaser and the court, in which the decree-holder and the judgment-debtor have no say. THE 2nd plaintiff/respondent being the beneficiary under the Will executed by the deceased plaintiff Subbaraya Reddiar, has stepped into the shoes of the said subbaraya Reddiar, and he is entitled to the fruits of the decree.