SARAVANA THEATRE Vs. T RAMALINGAM

JUDGEMENT

(1.) THE order passed in EA.No.76 of 2007 in EP.No.31 of 2005 in O.S.No.172 of 1999 on the file of the Court of Subordinate Judge, Gudiyatham, is under challenge in this revision. EA.No.76 of 2007 was filed by the Action Purchaser of Saravana THEatre, Gudiyatham, in EP.No.31 of 2005 in O.S.No.172 of 1999. THE said EA.No.76 of 2007 was filed for delivery of the property scheduled to EP.No.31 of 2005 viz., Saravana theatre. Since the petitioner in EA.No.76 of 2007 could not take delivery, he filed EA.No.154 of 2007 for break open to effect delivery, which was ordered by the learned Subordinate Judge, Gudiyatham. EA.155 of 2007 was filed in EA.No.76 of 2007 for police help, which was also allowed by the learned Subordinate Judge, Gudiyatham. Against the order of delivery in EA.No.76 of 2007, the judgment debtors in O.S.No.172 of 1999 have preferred this revision.

(2.) HEARD the learned counsel appearing for the revision petitioners, who would contend that under the proclamation of sale dated 29.12.2006, the property intended to be sold is in S.No.70/1 and the property sold under the Court auction sold dated 24.1.2007 is also in S.No.70/1, but the Auction Purchaser cannot take delivery of S.No.70/2 which is not the subject matter of the sale. According to the learned senior counsel appearing for the revision petitioners M/s.Saravana Theatre was attached before the judgment for realization of the decree amount in O.S.No.172 of 1999 is in S.No.70/2 and not in S.No.70/1. According to the learned senior counsel for the revision petitioners even as per the evidence of R.W.1 -VAO, Saravana Theatre is only in S.No.70/2 and it is not in S.No.70/1, but the decree holder in EP.31 of 2005 had scheduled Saravana Theatre as the property situate in S.No.70/1, wherein Saravana theatre does not exist.

(3.) RELYING on (2006) 3 M.L.J. 233 (S.C.) (Mohammed Masthan v Society, Congregation of the Brothers of the Sacred Hard and another), the learned senior counsel for the revision petitioners would contend that if the property to be delivered could not be identified then the delivery effected thereof is to be construed as irregular delivery. The exact observation in the above said judgment runs as follows:-