VEERAPPA GOUNDER Vs. PAPPU

JUDGEMENT

(1.) THE petitioner is a decree holder in O.S. No.541 of 1998 on the file of the Subordinate Judge, Namakkal. He filed E.P.No.133 of 2002 to execute the decree against the respondent. On 27.11.2002 the sale was fixed and there was no bidder. Hence the petitioner filed an Application in R.E.A. No.3596 of 2002 under Order 21, Rule 72 and Section 151 of C.P.C. to permit him to bid in the auction in respect of the Item No.1 of E.P. mentioned properties and have the sale proceeds set off against the decree amount.

(2.) THE respondent filed a counter controvert the allegations found in the affidavit. It is denied that the proposed price was high, that the respondent has not threatened the proposed bidders, that the properties which are brought for sale also include separate property of first respondent and; that the Petition has to be dismissed.

(3.) LEARNED counsel for the petitioner also draws attention of this Court in a decision reported in A. Jayathilakam and Others v. S. Dhanasekaran, 1995 (1) MLJ 519, wherein the learned Judge has discussed about the provision under Order 21, Rule 72 of C.P.C. As far as the prayer for setting off is concerned, since there is no other decree holder, the permission should have been granted by the Executing Court. Even in the counter filed by the judgment debtors it is not stated that some other creditors are available to get their decree satisfied. Under the circumstance, the order passed by the Executing Court with reference to the set off the decree amount is set aside.