SIVALINGAM Vs. MURUGAN

JUDGEMENT

(1.) The civil miscellaneous second appeal is directed against the Judgment and decree, dated 30.12.2008, passed in C.M.A.No.2 of 2006, on the file of the Subordinate Court, Karur, reversing the fair and decreetal orders, dated 29.04.2005, passed in E.A.No.93 of 2005 in E.P.No.552 of 1990 in O.S.No.151 of 1975, on the file of the Principal District Munsif Court, Karur.

(2.) The suit in O.S.No.151 of 1975 has been laid by the deceased A.Chidambaram Chettiar against the deceased V.Palappa Gounder, for recovery of the lease arrears amount with interest. It is found that the said suit has ended in a decree in favour of the abovesaid plaintiff on 10.12.1975 and the said decree has been endorsed by the First Appellate Court in A.S.No. 52 of 1976. Following the same, the execution petition in E.P.No.552 of 1990 has been laid by the legal representatives of the decree-holder against the judgment-debtor i.e. the deceased V.Palappa Gounder. Pending the execution petition, the judgment-debtor having died on 26.02.1991, it is found that the execution applications in E.A.Nos.648 and 653 of 1993 had been laid for bringing the legal representatives of the deceased judgment-debtor on record in the execution proceedings. Following the same, it is found that inasmuch as the first respondent, in particular, had not entered appearance in the execution proceedings, despite the service effected, a paper publication has been ordered and consequently, he had been set ex parte on 21.01.1998 and thereafter, the petition property had been brought for auction and originally, it is found that the upset price has been fixed at Rs.1,80,000/- and thereafter, the upset price has been lowered down to Rs.1,60,000/-, thereafter, further reduced to Rs.1,00,000/- and it is also noted that in the interregnum, the decree-holders have also obtained permission to take part in the auction sale and despite the same, the auction could not be conducted one way or the other and finally, the sale has been conducted on 21.04.2004 in favour of the auction purchaser, who is the fourth respondent herein and the same had been confirmed on 26.04.2004 and the execution petition had been closed on 28.06.2004. It is found that the first respondent had preferred the application in E.A.No.93 of 2005 seeking to set aside the auction sale conducted in respect of the petition property, on the ground of illegality and fraud. The abovesaid application has been preferred by the first respondent, under Order XXI Rule 90 and Sections 47 and 151 of the Code of Civil Procedure, alleging that mainly, no notice had been served upon him either in the applications taken by the legal representatives of the decree-holder, while bringing the legal representatives of the judgment-debtor on record in the execution proceedings and further, contended that no notice had been served on him when the upset price had been lowered down twice and he has also not been given any notice, while granting permission to the decree-holder to take part in the auction sale and accordingly, contending that by way of the abovesaid fraud and illegality committed by the decree-holders and thereby, the petition property of a considerable value had been sold in the Court auction at a low price, accordingly, seeking to set aside the Court auction sale conducted in respect of the petition property, according to him, he had laid the abovesaid application.

(3.) The abovesaid application of the first respondent had been resisted by the decree-holders as well as the Court auction-purchaser inter alia mainly pleading that due notice had been served on the first respondent and it is stated that the notice had been served on his wife in the applications preferred to bring the legal representatives of the deceased judgment-debtor on record and furthermore, it is also stated that inasmuch as the notice sent in the execution proceedings has been returned, as a last chance, the Court had ordered paper publication as a substituted service and even thereafter, he having not participated in the execution proceedings, had been set ex parte and it is stated that the Court has got the power to reduce the upset price, when there is no bidder to purchase the property at the auction sale and also contended that no prejudice has been shown on the part of the first respondent in the reduction of the upset price and it is further contended that despite having knowledge about the petition property being brought to auction sale through Court process and having allowed the fourth respondent to take part in the auction sale and the auction sale conducted in favour of the fourth respondent having been confirmed by the Court, the application had been preferred by the first respondent only to defeat the decree-holders as well as the fourth respondent from enjoying the decree obtained one way or the other and the auction sale conducted in respect of the petition property is not tainted with any illegality as projected and accordingly, contended that the application preferred by the first respondent is hit by the law of limitation, and prayed for the dismissal of the application.