R JEYARAMAN Vs. K P V SUNDARAMOORTHY

JUDGEMENT

(1.) THE revision petitioners are the judgment debtors and the defendants in the Suit. THE revision has been filed challenging the order passed in unnumbered E.A. of the year 2008 in E.P.No.74 of 2006 in O.S.No.44 of 2005 on the file of the Sub Court, Arupukkottai.

(2.) THE brief facts of the case in a nutshell are as follows: THE first respondent herein being the plaintiff filed the suit in O.S.No.44 of 2005 on the file of the Sub Court, Arupukkottai seeking the relief of recovery of money for a sum of Rs.4, 95,466/- inclusive of principle and interest on a promissory note. THE said suit filed by the first respondent was decreed on 12.06.2006. THE petitioners have been set exparte and the application filed by the petitioners to set aside the exparte decree was returned for compliance. In the meanwhile, the first respondent filed an application in E.P.No.74 of 2006 seeking to bring the properties of the petitioners for sale to recover the amount in pursuant to the decree. THE petitioners entered appearance in the execution petition but set exparte for not filing their counter and the said mistake had happened since the petitioners were assured by their then counsel that he would take care of the case. THEreafter, the properties were sold by auction in the Court auction held on 14.10.2008 for a sum of Rs.10, 53,500/-. THE second respondent is the auction purchaser and when the case is posted to 19.12.2008 for confirmation of sale and the petitioners came to know about the exparte orders and thereafter, they have filed the petition under Order 21 Rule 90 of the Civil Procedure Code by changing their counsel. In the said petition filed the petitioners herein have contended that the properties sought to be brought up for auction are the subject matter of other suits initiated by the father and mother of the first respondent for recovery of money on a mortgage. THE said fact has been suppressed. Infact there are four suits initiated against the petitioners by the above said persons. THE son of the petitioners is also having the share in the properties brought up for sale and hence without impleading him the properties cannot be brought up for sale. THE upset price fixed for the properties are very low and the Court ought to have taken steps to bring only a portion of the properties which is sufficient to realise the decree amount instead of the entire properties. THE said petition filed by the petitioners under Order 21 Rule 90 of the Civil Procedure Code was taken on file and admitted on condition that the petitioners shall deposit the sale warrant amount of Rs.10, 53,500/- on or before 11.12.2008. THE said order has been passed without numbering the application and without affording an opportunity to the petitioners. THE petitioners have challenged the above said order dated 01.12.2008 raising various ground.

(3.) THE above rule after the Amending Act stands as follows:--