P.ASHOKMITHRAN Vs. N.JAYANTHI

JUDGEMENT

(1.) This Civil Miscellaneous Second Appeal is preferred by the auction purchaser in E.P.No.50 of 2000 in O.S.No.234 of 1998 on the file of the First Additional Subordinate Judge, Nagercoil. O.S.No.234 of 1998 was a suit for recovery of money filed by the Canara Bank (Kottar Branch) at Chetty Street, Nagercoil, as against the defendant one S.Nagarajan for recovery of an amount of Rs.1,52,682.89 with future interest calculated at a rate of 19.85% as per annum.

(2.) I.A.No.384 of 1998 was filed in O.S.No.234 of 1998 for attachment before judgment by the plaintiff bank and the same was allowed on 1/4/1999 with respect to the property comprising an area of 0.750 cents comprised in T.S.No.Q-7/ 72 and 3 cents land comprised in T.S.No.Q-7/75, comprising a total area of 3.750 cents wherein the building bearing name "Saranya Lodge" is situated. The aforesaid property was attached by Amin who executed an attachment order marked as Ex.P-7 on 25/6/1999 and the report of the Amin in this regard was also filed duly on 25/6/1999 by the Amin on the file of the Subordinate Judge's Court at Nagercoil in I.A.No.384 of 1998 in O.S.No. 234 of 1998. The description of the property attached by the Amin is as Hotel Saranya, Thalavai Street. In the meanwhile, on 30/6/1999 an exparte decree was passed by the learned Trial Court for an amount of Rs.1,52,682.89 with interest at a rate of 19.85% and the attachment was made absolute.

(3.) Thereafter, an execution petition in E.P.No.50 of 2000 was filed by the plaintiff / decree holder for the sale of the property attached. The property attached was brought for sale at the first instance on 9/12/2002 and thereafter adjourned for 10 times, on every occasion, fresh sale proclamation was made and the sale upset price was reduced and finally the Court auction was conducted on 17/6/2010 for an amount of Rs.7,00,000.00 and the auction purchaser one Ashokamithran purchased the property in the Court order and the same was confirmed on 18/8/2010. The auction purchaser along with Court Amin visited the property to effect delivery on 23/9/2011, on which day, delivery was obstructed by one Jeyanthi, claiming that she had purchased the property sought to be attached from one Nepalraj on 2/1/2008 and that her vendor Nepalraj had purchased the same from the judgment debtor one Nagarajan on 25/11/1999. Pursuant to the same, the claimant obstructor, namely, Jeyanthi, filed an application in E.A.No.168 of 2012 in E.P.No.50 of 2000 in O.S.No.234 of 1998 under Order 21 Rule 90 of Code of Civil Procedure, 1908, to set aside the sale in favour of the auction purchaser/Ashokamithran on the ground of irregularity or fraud.