NACHIMUTHU GOUNDER Vs. AVALNAICKENPATTI CO-OPERATIVE SOCIETY BY ITS MANAGER, KRISHNAN AND ANR.
LAWS(MAD)-1970-8-11
HIGH COURT OF MADRAS
Decided on August 21,1970

NACHIMUTHU GOUNDER Appellant
VERSUS
Avalnaickenpatti Co -Operative Society By Its Manager, Krishnan Respondents

JUDGEMENT

R.Sadasivam, J. - (1.) PETITIONER , Nachimuthu Gounder, is the plaintiff in O.S. No. 999 of 1967, on the file of the District Munsif's Court, Namakkal, and he seeks to revise the order of the District Munsif that he should sue to set aside the sale held under the Co -operative Societies Act in his favour before he can claim relief in the suit and pay proper Court -fee for the same under Section 40(1) of the Madras Court -fees and Suits Valuation Act, 1955.
(2.) THE first respondent Society obtained a decree against the second respondent, a member of the Society on a mortgage executed by him and brought the hypotheca to sale under the provisions of the Madras Co -operative Societies Act. The petitioner was the auction -purchaser in the said sale. But, in a subsequent litigation with regard to the property, it is found that the second respondent owned only the southern half of the property known as Varadapillai Thottam, whereas what was mortgaged and brought to sale was the northern half belonging to a third party, Kondama Naicken. Under such circumstances, if the sale had been held by a Court, the purchaser could have moved the Court under Order 21, Rule 91, Civil Procedure Code, to set aside the sale, on the ground that the judgment -debtor had no saleable interest in the property sold. There is no similar provision giving a summary remedy to an auction -purchaser in a sale held under the provisions of the Madras Co -operative Societies Act. But, as held in the Full Bench decision in Macha Gounden v. Kottara Gounden : (1935) 69 MLJ 750 , an auction -purchaser, who was deprived of his property, had his remedy by way of separate suit. The first respondent Society had the balance of the sale price of Rs. 3,202 -02 after the decree in its favour was satisfied. The petitioner filed O.S. No. 219 of 1966 on the file of the lower Court against the respondents and obtained a decree in respect of the said sum of Rs. 3,202 -02, on the ground that the sale was void. He has subsequently filed the present suit to recover the balance of sale consideration paid by him, namely, Rs. 2,047 -98.
(3.) THE learned District Munsif has observed that the petitioner has not produced the decree and judgment in O.S. No. 219 of 1966 on the file of the District Munsif's Court, Namakkal, to show that there was a declaration that the auction sale in his favour was void, as pleaded in the plaint. O.S. No. 219 of 1966 on the file of the District Munsif's Court, Namakkal, could not have been decreed, unless the sale in favour of the petitioner is held to be void, and the decision is binding on the parties, to the present suit.;


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