MALAIYANDI KONAR Vs. BALAKRISHNAN

JUDGEMENT

(1.) THE petitioner is the judgement-debtor in O.S. No. 385 of 1977 on the file of District Munsif, Kulithalai.

(2.) THE respondent herein obtained a decree for recovery of money and in the execution process, the properties of the respondent were attached and brought to sale. THE respondent himself purchased the property in Court auction sale and the sale was confirmed on 22.8.1983. THEreafter the respondent filed the petition for seeking delivery of the property. THE petitioner herein filed objections stating that the petitioner is not the exclusive owner of the property and he is entitled only for 1/61 share. Moreover the property is not in the possession of the petitioner and as such the respondent is not entitled for actual physical possession. THE persons who are in possession and enjoyment of the property cannot be evicted. THE lower court has rejected the objections and ordered the petition filed by the respondent for delivery. Against the said order dated 29.6.1994 the present revision has been filed. THE court below disposed of the objections stating that there is no merit in the objections raised by the petitioner and hence the delivery is ordered.

(3.) IN view of the abovesaid principle, I am of the view that the Executing Court, without application of mind, has directed the sale of the property of nearly 5 acres for a paltry sum of Rs. 4,000/- and odd. Now the petitioner has shown his bona fide by depositing the amount of Rs. 35,000/- and I am of the view that the parties can be given an opportunity to establish the same. It is open to the petitioner to convince the lower Court as to the which portion of the property is sufficient to satisfy the decree amount and the lower Court is directed to consider the matter afresh, in the light of the decisions of the Supreme Court as well as the judgment of this Court referred above, dispose of the claim of the parties, in accordance with law. Since the Executing Court has not acted in accordance with the above laid principles of the Supreme Court. I am of the view that the sale itself is liable to be set aside even though no application has been filed by the petitioner. However, the objection filed by the petitioner is directed to be treated as a petition under Section 47 C.P.C. Hence, the matter is remitted back to the Executing Court with direction to dispose of the objection petition afresh. The executing court can also consider the need for the sale of property in view of the deposit made by the petitioner.