SUBBULAKSHMI AMMAL Vs. R BALASUBRAMANIAN

JUDGEMENT

(1.) EXCEPT C.R.P. No. 1135 of 1990, the other matters, namely, C.R.P. Nos. 591 and 592 of 1984 and C.M.A. No. 97 of 1984 arise from a common order passed by the learned Subordinate Judge, Tuticorin, in O.S. No. 148 of 1971. C.R.P. No. 591 of 1984 arises from E.A. No. 287 of 1981; C.R.P. No. 592 of 1984 arises from E.A. No. 224 of 1981 and C.M.A. No. 97 of 1984 arises from E.A. No. 501 of 1980 in the above suit. C.R.P. No. 1135 of 1990 also arises from the same suit, but it arises from E. A. No. 476 of 1986 against the Order passed thereon, on 20.7.1987.

(2.) THE material facts of the case can be summarised as follows:- THE plaint schedule property which is the subject matter of these proceedings originally belonged to late Ramasamydoss who died on 7.1.1964. He died as a debtor and some of his legal representatives filed a suit O.S. No. 26 of 1965, on the file of Sub Court, Tuticorin, for administration of the estate and for taking accounts. Various creditors were also made parties to the suit, and all the properties belonging to him were also scheduled, which included his self acquired properties and also properties over which he had an undivided share. In that suit, an Advocate was appointed as an Administrator, who took possession of the properties which included the subject matter of these proceedings. While the suit was pending, another suit was filed before the Sub Court, Tuticorin as O.S. No. 148 of 1971, by one Emperumalsami Naicker on the basis of a simple mortgage executed by the deceased. In that suit, the 11th defendant was the Administrator appointed in O.S. No. 26 of 1965. A preliminary decree was passed in that case on 29.8.1972, and final decree was also passed on 8.10.1973 for sale. While so, in the administration suit O.S. No. 26 of 1965, the plaint property was brought to sale by the Administrator and the wife of the second defendant in the mortgage suit, one Chandra, was the highest bidder. THE Administrator moved the Sub Court for accepting the bid of Chandra for which various objections were raised and ultimately, as per order dated 15.7.1977, the Subordinate Judge, Tuticorin confirmed the sale in favour of Chandra. That order has become final. By virtue of that sale, Chandra became the purchaser of the property, which is the subject matter of these proceedings. It may be noted that one Emperumalsami Naicker, who is the 6th defendant in O.S. No. 26 of 1965 filed serious objection against the confirmation in favour of Chandra. It was after rejecting his objection, the sale was confirmed. THE relevancy of the objection will be considered in the subsequent stages of this Order.

(3.) BY the impunged order, the Court below said that Chandra has got an interest in the property and, therefore, she is competent to file an application under O. 21, R. 90, C.P.C. It was held that E.A. No. 501 of 1980 is maintainable. But, on merits, the lower Court said that no grounds have been made out that there was any fraud or irregularity in the conduct of the sale. Therefore, E.A. 501 of 1980 was dismissed. But there is a finding in that E.A that the application filed by Chandra is maintainable. Against that finding, the auction-purchaser has filed C.M.A. No. 97 of 1984. The lower Court further found that even though the earlier application for accepting the security was dismissed by that Court and in consequence thereof the execution of sale in this suit is continuing, and once that order has been set aside by the High Court, the order of confirmation is automatically effaced. If that be so, the second defendant is competent to file the application under O. 34, R. 5, C.P.C. Since the amount has been deposited for payment to the decree-holder and also the poundage, the lower Court said that E.A. 224 of 1981 has to be allowed. C.R.P. No. 592 of 1984 is filed against that order.