SHANMUGHAM Vs. ANGALAMMAI AMMAL

JUDGEMENT

(1.) THE third respondent, auction purchaser, in E. A. 1125 of 1961 in E. P. 1355 of 1959 in O. S. 660 of 1958 is the appellant herein. E. A. 1125 of 1961 was filed by the first defendant in O. S. 660 of 1958 under S. 47 C. P. C. for setting aside the sale held on 21-6-1961, as it was illegal and void and liable to be set aside.

(2.) O. S. 660 of 1958 was instituted for recovery of the amount due under a mortgage executed by the first defendant, the first respondent herein. The State of Madras was impleaded as the second defendant on the ground that it claimed some interest in the hypotheca by reason of a loan said to have been advanced to the first defendant. The trial court negatived the claim of the State of Madras and passed a preliminary decree for sale on 22-6-1959 in favour of the plaintiff. Against that decree the State preferred an appeal, A. S. 504 of 1959, which was allowed on 25-8-1960 and the encumbrance in favour of the State was upheld. Pending appeal, the decree holder plaintiff filed E. P. 1355 of 1959 for bringing the hypotheca to sale on 11-11-1959. When that petition came on for hearing on 173-1960, an endorsement was made by the decree-holder's advocate to the following effect.

(3.) THE trial court held that the judgment debtor ought to have filed an application under O. 21 R. 90 C. P. C. and that a petition under S. 47, C. P. C. does not lie. It also held that the judgment debtor has failed to prove that the sale was fraudulent or collusive or that it was vitiated by any irregularity or illegality, and dismissed the petition. On appeal the learned District Judge held that the application under s. 47 C. P. C. was maintainable and that the sale by the executing court of the hypotheca subject to an encumbrance in favour of the State of Madras, is not in accordance with the decree and as such the sale is liable to be set aside. He also held that as the execution was of the decree of the trial court, subsequent to the passing of the decree by the appellate court, without the necessary modification, it cannot be sustained. He further held that as the execution of the decree was beyond the powers of the executing court, no question of res judicata would arise. In the result, the appeal was allowed and the sale was set aside. Hence this appeal by the auction purchaser.