D SRINIVASAN Vs. F X DENNY (DECEASED)

JUDGEMENT

(1.) This Civil Miscellaneous Second Appeal is directed against the order of the learned II Additional City Civil Court, Chennai, dated 29.6.2010 made in C.M.A.No.135 of 2009, dismissing the appeal preferred by the appellant against the order dated 3.4.2009 passed in E.A.No.1391 of 2009 in E.P.No.1518 of 2004 in O.S.No.2138 of 2003 on the file of the X Assistant Judge, City Civil Court, Chennai.

(2.) The appellant is the judgment debtor; the deceased first respondent is the original decree-holder; the respondents 2 to 4 are the auction purchasers and the respondents 5 to 7 are legal heirs of the deceased first respondent/decree-holder.

(3.) The appellant has filed E.A.No.1391 of 2009 under Order 21, Rule 90 CPC to set aside the sale held on 29.11.2006 in E.P.No.1518 of 2004 in O.S.No.2138 of 2003 stating that despite petition filed by the appellant to adjourn the sale, auction was held on 29.11.2006 for Rs.42,00,000/-. The property sold in the auction is the property mortgaged to Palghat Permanent Fund Limited and the original documents were with them. Without notice to Palghat Permanent Fund Limited, the property was brought for Court auction and Palghat Permanent Fund Limited is necessary party in respect of the sale. It is stated that the first respondent/decree-holder had fraudulently filed sale papers without entry of mortgage details in the encumbrance certificate. The auction without notice to Palghat Permanent Fund Limited cannot be sustained and prayed for setting aside the court auction sale dated 29.11.2006 held in E.P.No.1518 of 2004.