MARIMUTHU Vs. AMBUJAM AMMAL

JUDGEMENT

(1.) THE plaintiff is the appellant. One Bangaru Naicker was the original owner of the suit property. He mortgaged the property in favour of the plaintiff on 9-11962, for a sum of Rs. 400. The plaintiff filed a suit O. S. No. 248 of 1968 on the said mortgage and obtained a preliminary decree and then a final decree. The suit property was brought to sale by the plaintiff in E. P. 328 of 1969 and with the court's permission he purchased the same in the court auction sale held on 11-2-1970. The sale was confirmed on 28-3-1970, and the plaintiff took delivery of possession of the property through court on 20-7-1970, in E. A. 1049 of 1970. The first defendant had also advanced money on a mortgage of the same property and the said mortgage was subsequent to the one in favour of the plaintiff. The first defendant filed a suit in O. S. No. 911 of 1967, against the mortgagor Bangaru Naicker and in execution of the decree, brought the property to sale. After getting permission of the court, she purchased the same in the court auction held on 7-1-1970. The sale was confirmed and the first defendant took delivery of possession of the property through court on 17-101970. The plaintiff brought the present suit for an injunction to restrain the defendant, their men and others from interfering with his peaceful possession and enjoyment of the suit property and for costs.

(2.) THE first defendant resisted the suit on the ground that the court auction sale in her favour being on 7-1-1970 there was nothing that could have been sold to the plaintiff on 11-2-1970 and that as such the subsequent court auction sale in favour of the plaintiff was not binding on the first defendant. It was therefore, submitted that the plaintiff could not claim any right in pursuance of the subsequent court auction sale held on 11-2-1970. It was also stated that the plaintiff was not in possession of the suit property and that there was no cause of action for the suit.

(3.) THE learned Additional District Munsif of Tiruchirapalli decreed the suit as prayed for with costs, holding that the plaintiff had title to the suit property by virtue of the court auction sale held on 11-2-1970, and that he had taken possession of the property through court as per the delivery athakshi Ex. A-2 and the delivery receipt Ex. A-3, on 21-7-1970. There was an appeal against this judgment by the first defendant and the appeal came before the Second additional Subordinate Judge of Tiruchirapalli. The learned Subordinate Judge held that since the court auction sale in favour of the first defendant was earlier in point of time, though confirmed later, she alone was entitled to the suit property by virtue of the provisions of Section 65, C. P. C. , and that it was the duty of the court to confirm a sale under Order 21, Rule 92, C. P. C. in the absence of any petition filed under Rr. 89 to 91 and that as such, the plaintiff could not take advantage of the fact that his sale was confirmed earlier though the sale was actually held later. He further held that merely because the plaintiff was in possession of the property he was not entitled to the relief of injunction particularly when the first defendant was the lawful owner of the suit property. He therefore allowed the appeal and set aside the judgment and decree of the trial court granting injunction in favour of the plaintiff. The plaintiff has now come on second appeal disputing the correctness of this judgment of the learned Subordinate Judge.