V KRISHNAMOORTHY Vs. RADHABAI AMMAL

JUDGEMENT

(1.) The case has got chequered history. Civil Revision Petition (NPD) No.1128 of 2006 has been filed against the order of Executing Court dismissing the Execution Petition filed under Section 151 of C.P.C. to direct the Respondent to deposit Rs.2,50,000/- into Court within time granted by court and for other reliefs. Civil Revision Petition (NPD) No.4003 of 2007 has been filed against the order of Executing Court dismissing the Execution Petition filed under Order 21 Rule 95 of C.P.C. for delivery of Possession of the immovable properties from the Judgment Debtor through the process of law. Since the issues and the parties in both the Revision Petitions are same, this common order is rendered.

(2.) The facts which are necessary to decide the Civil Revision Petitions are as follows:

(3.) Learned counsel for the Revision Petitioner vehemently contended that the Executing Court has gone beyond the scope of the decree and in fact has ignored the previous litigations between the same parties which reached finality which went upto the Supreme Court. The Executing Court in a casual manner set aside the decree on ground of alleged fraud without any basis. The Executing Court has in fact found fault with the decree and decree should not have been passed and placed the burden on the Plaintiff to prove the alleged discharge receipt pleaded by the defendant in the suit. Such approach of the Executing Court is against the fundamental principle of law without any basis. Admittedly in the sale proclamation itself subsequent purchase made by the Judgment Debtor has been clearly notified. As the decree itself is a charge decree and the purchase is hit by doctrine of lis pendens and the subsequent purchaser also participated in the proceedings upto High Court and he lost in all the forum, cannot be said that there was fraud by the Revision Petitioner. Subsequent purchase is hit by doctrine of lis pendens. Since the decree is charge decree and he has purchased the property in Court Auction purchase, there is no need to implead such pendente lite purchaser. Hence, submitted that those things cannot be a fraud as held by the Executing Court. Executing Court has taken tangent view and non-suited the orders of the High Court and Apex court, which is not maintainable.