- (1.) EXCEPT C.R.P. No. 1135 of 1990, the other matters, namely, C.R.P. Nos. 591 and 592 of 1984 and C.M.A. No. 97 of 1984 arise from a common order passed by the learned Subordinate Judge, Tuticorin, in O.S. No. 148 of 1971. C.R.P. No. 591 of 1984 arises from E.A. No. 287 of 1981; C.R.P. No. 592 of 1984 arises from E.A. No. 224 of 1981 and C.M.A. No. 97 of 1984 arises from E.A. No. 501 of 1980 in the above suit. C.R.P. No. 1135 of 1990 also arises from the same suit, but it arises from E. A. No. 476 of 1986 against the Order passed thereon, on 20.7.1987.
(2.) THE material facts of the case can be summarised as follows:- THE plaint schedule property which is the subject matter of these proceedings originally belonged to late Ramasamydoss who died on 7.1.1964. He died as a debtor and some of his legal representatives filed a suit O.S. No. 26 of 1965, on the file of Sub Court, Tuticorin, for administration of the estate and for taking accounts. Various creditors were also made parties to the suit, and all the properties belonging to him were also scheduled, which included his self acquired properties and also properties over which he had an undivided share. In that suit, an Advocate was appointed as an Administrator, who took possession of the properties which included the subject matter of these proceedings. While the suit was pending, another suit was filed before the Sub Court, Tuticorin as O.S. No. 148 of 1971, by one Emperumalsami Naicker on the basis of a simple mortgage executed by the deceased. In that suit, the 11th defendant was the Administrator appointed in O.S. No. 26 of 1965. A preliminary decree was passed in that case on 29.8.1972, and final decree was also passed on 8.10.1973 for sale. While so, in the administration suit O.S. No. 26 of 1965, the plaint property was brought to sale by the Administrator and the wife of the second defendant in the mortgage suit, one Chandra, was the highest bidder. THE Administrator moved the Sub Court for accepting the bid of Chandra for which various objections were raised and ultimately, as per order dated 15.7.1977, the Subordinate Judge, Tuticorin confirmed the sale in favour of Chandra. That order has become final. By virtue of that sale, Chandra became the purchaser of the property, which is the subject matter of these proceedings. It may be noted that one Emperumalsami Naicker, who is the 6th defendant in O.S. No. 26 of 1965 filed serious objection against the confirmation in favour of Chandra. It was after rejecting his objection, the sale was confirmed. THE relevancy of the objection will be considered in the subsequent stages of this Order. Thereafter, pursuant to the final decree in the mortgage suit O.S. No. 148 of 1971, the very same property was brought to sale on 11.1.1978, auction was held and the property was sold. An application under O. 21, R. 90, C.P.C. was filed by Chandra on 3.2.1978 alleging that the auction in the mortgage suit is bad and that she has purchased the property from the Administrator, and even before the sale in her favour, she was in possession of the property as lessee under the Administrator. It was further stated in that Application that the decree holder as well as auction purchaser were aware of the sale in her favour, and according to her, there cannot be two sales in respect of the same property. Various other grounds under O. 21, R. 90, C.P.C. were also stated therein. When that Application was filed, security had to be furnished, and she claimed exemption from furnishing security by filing E.A. No. 104 of 1978. That application was dismissed, and consequently her application under O. 21, R. 90, C.P.C. which was unnumbered then also could not be taken into consideration. Against the order in E.A. No. 104 of 1978, she filed C.R.P. No. 1631 of 1978. This Court, as per order dated 10.8.1978, set aside the order and directed the matter to be considered afresh. She also filed E.A. No. 110/78 to accept third party security. Even after remand, again the application was dismissed. C.M.A. No. 227 of 1979 was filed against that dismissal order. As per judgment dated 9.8.1979, the order of the executing Court was again set aside, and the matter was remitted back. In the meanwhile, since the Application, namely, E.A. No. 110 of 1978, for accepting third party security was dismissed, the sale in this suit (O.S. No. 148 of 1971) was confirmed. After the judgment in C.M.A. No. 227 of 1979, third party security was furnished and the application to set aside the sale was numbered. When the same was registered, second defendant, along with his wife, filed E.A. No. 224 of 1981 under O. 34, R. 5, C.P.C. for permitting them to deposit the amount due to the decree-holder along with the poundage, and to have the sale set aside. The judgment debtor also filed E.A. 287 of 1981 under S. 151, C.P.C. to restore E.P. No. 62 of 1975, the reason being that even though the sale was confirmed by an Order, in view of the remand in C.M.A. No. 227 of 1979, the application under O. 21, R. 90. C.P.C. has to be restored and, therefore, the Execution Petition also has to be restored to file. It is these applications that were disposed of by the common order, which is challenged in these Revisions and C.M.A. The auction purchaser in O.S. No. 148 of 1971 is dead and his legal representatives have been impleaded. The decree-holder has no objection in setting aside the sale. But, according to the auction purchaser, Chandra, the purchaser from the Administrator, has no right or interest in the property, and she being a third party, is not entitled to file any application under O. 21, R. 90, C.P.C. According to the auction-purchaser, her (Chandra's) so called interest is not affected by sale, for, she had no interest at all. The main reason for such contention was, even though she might be the purchaser from the Administrator, she had not taken a sale deed from the Administrator and, therefore, her right cannot be recognised by a Court of Law. Since the application is filed by a third party who has no interest in the property, mere pendency of that Application will not give a right to the judgment-debtor to move an application under O. 34, R. 5, C.P.C. It is further contended that once the application filed by Chandra has been dismissed for non-furnishing of security and the sale was confirmed, the subsequent setting aside of that order will not efface the earlier confirmation of sale. It is also contended that once the sale has been confirmed and the decree has been satisfied in O.S. No. 26 of 1965, the Execution Petition in that suit, namely, E.P. No. 62 of 1975 need not be reviewed and nothing more is to be executed in that case.
(3.) BY the impunged order, the Court below said that Chandra has got an interest in the property and, therefore, she is competent to file an application under O. 21, R. 90, C.P.C. It was held that E.A. No. 501 of 1980 is maintainable. But, on merits, the lower Court said that no grounds have been made out that there was any fraud or irregularity in the conduct of the sale. Therefore, E.A. 501 of 1980 was dismissed. But there is a finding in that E.A that the application filed by Chandra is maintainable. Against that finding, the auction-purchaser has filed C.M.A. No. 97 of 1984. The lower Court further found that even though the earlier application for accepting the security was dismissed by that Court and in consequence thereof the execution of sale in this suit is continuing, and once that order has been set aside by the High Court, the order of confirmation is automatically effaced. If that be so, the second defendant is competent to file the application under O. 34, R. 5, C.P.C. Since the amount has been deposited for payment to the decree-holder and also the poundage, the lower Court said that E.A. 224 of 1981 has to be allowed. C.R.P. No. 592 of 1984 is filed against that order.;