M K KANNAIYAN Vs. SAROJA

JUDGEMENT

(1.) THE petitioners are the Judgment Debtors 2 and 3/Defendants and the respondent is the decree holder/Plaintiff. THE respondent/document holder filed a suit in O.S.No,366/01 before the Sub-Court, Sankagiri alleging that the father of the petitioners borrowed a sum of Rs.50,000/- by executing a promissory note and failed to repay the amount. Subsequently, the father of the petitioner died on 16.09.1999. THErefore, the respondent filed a suit against the petitioners for recovery of pro note amount. THE above suit was transferred to Sub-Court, Namakkar and later the same was transferred to the District Munsif Court, Tiruchengode. Subsequently, the same was decreed on 27.09.2004. Further, when the suit was pending before the Sub-Court, Sankagiri, the respondent/plaintiff filed a petition for attachment in I.A.No.1288/2001. THE said property is that S.No,905 extent 0.0200 sq.m. tiled house bearing D.Nos.4/403 and 4/403-4 of Pallipalayam Agrharam village, Tiruchengode Taluk, Namakkal District. Subsequently, the respondent/plaintifff filed a REP.No,60/2005 for sale of petition property for realization of the decree amount. THE petitioner/defendant resisted and stated that the respondent/plaintiff trying to sell the property through Court auction, which is not attached by the Court on the ground that there is a discrepancy in the Survey number. THE correct Survey number is 90/5 but wrongly stated as 905. THE respondent/plaintiff also filed a counter stating that there is only a mistake in survey no. It should be S.No,90/5 instead of 905, which is only a typographical error and also further submitted that there is no dispute regarding the description of the property, like D.Nos. and village are same. Further stated in the counter that the Court got power under Section 51(b) of CPC to execute the decree by sale without attachment of any property. After considering the arguments on either side, the trial Court dismissed the REA.No.153 and 167 of 2008 on the ground that there is no discrepancy and also relied on Section 51(b) of CPC. Aggrieved by that order, the present two revisions filed. One is against dismissal and another one is against stay of the order.

(2.) THE learned counsel appearing for the petitioners/defendants submitted the trial Court erred in dismissing the petitions without properly considering the facts and circumstances of the case. Further submitted that the trial court ought to have held that the respondent has brought the property for sale in execution proceedings without even getting the order of the attachment corrected. THE trial Court failed to see that the property attached and the property now brought for sale in the execution proceeding are totally different. Also further submitted that the sale proceedings initiated against the respondent is not in accordance with law and the execution petition is liable to be dismissed and further submitted that there is no proper attachment in respect of the property in S.No,90/5 and therefore, the Court cannot order sale of the property in execution petition. THErefore, the order passed by the trial Court is not in accordance with law and the same has to be set aside.

(3.) IN the result, the Civil Revision Petitions are dismissed. No Costs. Consequently, connected M.P.No.1 of 2009 is closed.