SAJU GEORGE Vs. THOMAS

JUDGEMENT

(1.) WHETHER a transferee of a judgment debtor subsequent to the decree is a representative of the judgment debtor and whether he is entitled to challenge the court auction sale in execution of the decree, under section 47 of Code of the Code of Civil Procedure. When the mortgagee decree holder bid the property in court auction sale, if the court failed to fix reserve price as provided under sub-rule (2) of Rule 72A of Order XX1 of Code of Civil Procedure, whether the sale is void. If the judgment debtor files an application under Rule 90 of Order XX1 of Code of Civil Procedure to set aside the sale, whether judgment debtor himself or his representative is entitled to file a petition to set aside the sale under section 47 of Code of Civil Procedure. These are the interesting questions to be decided in these revision petitions.

(2.) FIRST respondent mortgagee instituted O.S. 68/1986 a suit on mortgage before Sub Court, Ernakulam against second respondent mortgagor for realisation of Rs. 76000/- with interest by sale of 1 the mortgaged property having an extent of 73 cents. A decree was granted in his favour. E.P.No. 353/1988 was filed for execution of the decree by sale of the mortgaged property. The property was sold in court auction on 27.11.1999 for Rs. 1,91,443/- in favour of the decree holder, who obtained permission of the court to bid and purchase by the order in E.A. 909/1999. Though permission was granted as provided under sub-rule (2) of Rule 72A of Code of Civil Procedure, there was no prayer in the petition, to fix reserve price and executing court did not fix any reserve price. The sale was confirmed on 14.11.2000. First respondent decree holder auction purchaser took delivery of the property. Much prior to the court auction sale, second respondent sold 15 cents of the mortgaged property in favour of the petitioner in C.R.P. 133/2006 (the claim petitioner in E.A. 1376/2002) under sale deed dated 14.3.1996 and 12.760 cents in favour of the petitioner in C.R.P. 137/2006 (the claim petitioner in E.A. 1281/2002) under sale deed dated 14.3.1996 and another 15 cents in favour of the petitioner in C.R.P. No. 138/2006 (claim petitioner in E.A. 1403/2002). Another portion was sold by second respondent in favour of Bharathiya Vidya Bhavan as per sale deed dated 29.6.1998 and 31.7.1998. The respective claim petitioners after delivery of the property by the court filed respective claim petitions before the executing court under section 47 of Code of Civil Procedure to set aside the sale contending that court auction sale as confirmed by the court is void on the ground that it was the decree holder who bid and purchased the mortgaged property when executing court did not fix reserve price as provided under sub-rule (2) and connected cases 4 of Rule 72A of Order XX1 of Code of Civil Procedure. Third respondent an assignee from first respondent subsequent to the court auction sale was later impleaded in the petitions. The case of the petitioners is common. Case was that as court sale was without fixing reserve price, sale is void and first respondent decree holder did not derive any right by the sale though sale confirmed by the executing court. It was also alleged that the property is worth more than Rs. 35 lakhs and was purchased by the decree holder for a paltry sum of Rs. 1,91,443/- and therefore the sale is to be declared null and void.

(3.) SECOND respondent contended that there were two attachments over the mortgaged property and second respondent got the attachment released and paid the entire decree debt to first respondent decree holder who assured that execution proceedings would be dropped and therefore second respondent did not follow up the case but the decree holder played fraud on him. It is admitted by him that he had assigned portions of the mortgaged property in favour of the respective petitioners subsequent to the decree.