MARAPPA GOUNDER Vs. CHELLAPPA GOUNDER

JUDGEMENT

(1.) COMMON ORDER These Civil Revision Petitions are directed against the Orders dated 16-9-1988 passed by the District Munsif, Tiruchengode, Salem District in E.A. No. 364 of 1987 in E.P. No. 183 of 1981 in O.S. No. 836 of 1978 and in E.A. No. 401 of 1987 in E.P. No. 1 of 1981 in O.S. No. 836 of 1978 (Sub Court, Salem) respectively.

(2.) THE Petitioner in these Civil Revision Petitions is the auction purchaser. THE First Respondent is the Decree-holder and Respondents 2, 3 and 4 are the Judgement Debtors. O.S. No. 836 of 1978 was filed to recover the amount due under the promissory note. THE said suit was decreed on 26.3.1974. THE first respondent had filed E.P. No. 183 of 1981 on the file of the District Munsif, Tiruchengode and had brought the share of the family consisting of respondents 2, 3 and 4 for sale in the court auction. THE revision petitioner herein purchased the said share consisting of properties in three survey numbers. Sale certificate was also issued. THEreafter the auction purchaser/revision petitioner herein had filed R.E.A. No. 364 of 1987 on the file of the District Munsif, Tiruchengode for delivery of possession. Fifth respondent had filed R.E.A. No. 401 of 1987 on the file of the District Munsif, Tiruchengode, praying not to record delivery of possession. According to the fifth respondent, the decree is not executable since the properties belonging to the family of the judgement debtors is an undivided share in a common property. Now, it is stated that the fifth respondent is no more and that his legal representatives were brought on record. THE Execution Court was of the opinion that since the property belonging to the family of the judgement debtors is an undivided share in a joint family property, possession could not be given to the action purchaser and that the remedy open to the auction purchaser was only to file a proper suit for partition. THE said view was taken by the Execution Court, on the basis of some of the decisions rendered by this Court on this aspect. But, it remains to be seen that those are the judgments rendered under the Hindu Law, wherein it is stated that if a person purchases in a Court auction sale, an undivided share of a co-parcener in the joint family, he cannot get possession, but the remedy for him is only to file a suit for partition. But the principle cannot be made applicable to the facts and circumstances of the present case, because, the auction purchaser has not purchased any undivided share belonging to a co-parcener in a joint Hindu family. What was purchased by the auction purchaser was the property belonging to the family of the judgment debtor, as one unit in three survey numbers, jointly owned along with other persons. In such a case, the above said principle enunciated by the decisions of this Court cannot be made applicable to the facts, arising in the present case. THErefore, there is no impediment for the auction purchaser to obtain possession of the properties in three survey numbers, belonging to the family of the judgment debtors as one unit.

(3.) IN such circumstances, the orders passed by the Execution Court in both the E.A. Nos. 364 and 401 of 1987, dated 16.9.1988 shall stand set aside and both the Civil Revision Petitions shall stand allowed. The Respondents/Judgment debtors are directed to hand over vacant possession of the schedule mentioned properties to the petitioner herein. There will be no orders as to costs.