K.M.BALASUBRAMANIAN Vs. C.LOGANATHAN

JUDGEMENT

(1.) Challenging the dismissal of the application in E.A. No.136 of 2009, filed under Sec. 47 and 151 CPC, the present Civil Revision Petition has been preferred.

(2.) The first respondent herein as a plaintiff had filed the suit in O.S. No.656 of 2002 against the revision petitioner herein for recovery of money due on a promissory note. The said suit was decreed ex parte. At the time of filing the suit, the property was attached before judgment and after the suit was decreed, an execution petition was filed in E.P. No.292 of 2006 in O.S. No.656 of 2002 for recovery of amount in which the property was sold in Court auction. The second respondent herein was the auction purchaser and he filed the application for delivery after receipt of the sale certificate. Only at that point of time, the revision petitioner/judgment debtor came to know about the sale. Immediately thereafter, the revision petitioner/judgment debtor filed an application in E.A. No.136 of 2009 under Sec. 47 and 151 Civil Procedure Code seeking the following reliefs:

(3.) The revision petitioner/judgment debtor contended before the Trial Court that since an application in I.A. No.129 of 2009 which has been filed for setting aside the ex parte decree along with an application for condonation of delay of 1581 days is pending, the execution petition seeking delivery is not maintainable. Further, it was contended that no proper publication was made for sale of the petition mentioned property and the first respondent has abused the process of law and therefore, the sale itself is invalid. But the executing Court, after considering the counter filed by the second respondent had dismissed the application preferred by the revision petitioner/judgment debtor in E.A. No.136 of 2009 under Sec. 47 and 151 Civil Procedure Code stating that the relief sought for by the revision petitioner/judgment debtor will fall under Order 21, Rule 90 Civil Procedure Code and hence, it is barred under Art. 127 of the Limitation Act. Further, the application filed under Sec. 47 and 151 Civil Procedure Code is not maintainable, against which the present Civil Revision Petition has been preferred.