M. VIJAYA Vs. M.R. CHINNADURAI AND ORS.

JUDGEMENT

(1.) By way of instant Civil Revision Petition under Section 115 of the Code of Civil Procedure, the auction purchaser has assailed an order dated 18.7.2012 passed by the Principal District Judge, Theni, in C.M.A. No. 3 of 2011 reversing the fair and decretal order dated 18.3.2010 passed by the Subordinate Judge, Periakulam, in E.A. No. 141 of 2009 in E.P. No. 28 of 1999 in O.S. No. 253 of 1988. Brief facts relevant for the purpose of deciding the instant petition are that the plaintiff Karur Vysya Bank Limited, Periyakulam, filed O.S. No. 253 of 1988 before the Subordinate Court, Periyakulam, for recovery of money against the defendants based on a mortgage dated 13.7.1985. Preliminary decree was passed in the suit on 14.11.1994 followed by a final decree passed on 30.3.1998. Thereafter, the plaintiff had filed Execution Petition in E.P. No. 28 of 1999 before the Sub-Court, Periyakulam, for recovery of Rs. 6,61,485/- with 14.5% future interest. Pursuant to the same, the auction of the secured property was brought to sale on 03.8.2009 in which the present petitioner was the highest bidder. While so, the Judgment debtors, viz., respondents 1 and 2 herein, who are the defendants 1 and 3 in the suit, had filed an application in E.A. No. 141 of 2009 under Order XXI Rule 90 CPC to set aside the Court auction sale. It is seen from the materials available on record that the revision petitioner had purchased the property for a sum of Rs. 5,90,100/-, which is less than the decree amount. Therefore, the judgment debtors raised several contentions in the application including that of the value of the sale price fixed for the property. The learned Subordinate Judge, Periyakulam, dismissed the said E.A. No. 141 of 2009 on 18.3.2010. On the same day, the auction sale was confirmed in favour of the revision petitioner and as the revision petitioner/auction purchaser had deposited the sale amount, the same was withdrawn by the plaintiff/decree holder. However, aggrieved by the order passed by the learned Subordinate Judge, Periyakulam, dismissing E.A. No. 141 of 2009, the judgment debtors filed C.M.A. No. 3 of 2011 before the Principal District Court, Theni. Pending appeal, the judgment debtors also filed an application in I.A. No. 10 of 2012 under Order XXXIV Rule 5 CPC for redemption of the mortgage as against which the decree holder had filed counter as per which they had to deposit a sum of Rs. 10,78,229.02 and break-up of the same is as follows:-

(2.) The First Appellate Court, by judgment dated 18.7.2012, allowed the said appeal and also I.A. No. 10 of 2012 filed under Order XXXIV Rule 5 CPC directing the judgment debtors to deposit Rs. 10,78,229.02 along with interest from 04.8.2009 till the date of deposit and also an additional 5% of the auction amount on or before 16.8.2012. Being aggrieved and dissatisfied with the said order, the present Revision Petition has been focused by the auction purchaser.

(3.) Heard the learned counsel appearing for the parties and perused the records.