The fair and final orders, dated 30.09.2005, made in E.A.No.30 of 1999 in E.P.No.119 of 1997 in O.S.No.182 of 1995, on the file of the Sub Court, Tuticorin, are impugned in this civil revision petition by the plaintiff.
2. From the materials placed, it is found that the revision petitioner has obtained a Preliminary Decree on 29.01.1996 and Final Decree on 26.03.1997 and pursuant to the same, it is found that for executing the above mentioned Final Decree, it has preferred E.P.No.119 of 1997 for bringing the property detailed in the execution petition for sale. Pending the above said execution petition, it is found that the first respondent had preferred an application, in E.A.No.30 of 1999, contending that the property, which is brought for sale by the revision petitioner in the above mentioned execution petition, belonged to him and that the said property had already been brought for Court Auction Sale pursuant to the order passed in E.P.No.146 of 1996 in O.S.No.47 of 1995 and in the above said Court process, according to the first respondent, he had purchased the property in the Court Auction Sale for a sum of Rs.6,00,000/- on 25.09.1996 and the auction sale in his favour had also been confirmed on 27.11.1996 and the Sale Certificate has also been issued in his favour and further, he has also taken the possession of the property through Court process by filing E.A.No.792 of 1996 on 24.11.1996 and from that date onwards, according to him, the property is in his possession and enjoyment and it is also stated that during the pendency of E.P.No.146 of 1996, the revision petitioner made attempts to stall the execution proceedings one way or the other, however, its attempt ended in vein and therefore, according to the first respondent, suppressing all the above mentioned facts, the revision petitioner under the guise of the Decree obtained by it in O.S.No.182 of 1995 has again brought the property for sale and inasmuch as the property had been purchased by the first respondent through the Court Auction Sale and his sale had also been confirmed and inasmuch as he has also taken the possession of the property and enjoying the same, the revision petitioner is not entitled to again bring the property for sale and hence, the petition is liable to be dismissed.
3. Countering the same, it is contended by the revision petitioner that the property involved in the execution proceedings had been mortgaged in its favour and therefore, according to it, it has preferential right over the property and further, according to it, the alleged sale put forth by the first respondent which took place on 25.09.1996 is a collusive one and the same will not bind the right of the first respondent and the first respondent knowing about the revision petitioner's first charge and mortgage over the property in question had participated in the auction and in such view of the matter, according to it, the first respondent cannot claim any legal right over the property in question and the first respondent is not a bona fide purchaser of the property and inasmuch as he has purchased only the litigation, the petition laid by him is not maintainable and it is liable to be dismissed.
4. The Court below, on a consideration of the materials placed before it, had accepted the contentions put forth by the first respondent and accordingly, allowed the application preferred by him. Impugning the same, the civil revision petition has been preferred.
5. It is the specific case of the first respondent that he had purchased the property involved in the execution proceedings through Court Auction Sale in the execution proceedings preferred in E.P.No.146 of 1996 on 25.09.1996 and that his sale had also been confirmed and he being issued the Sale Certificate had also taken the possession of the property through Court process and being in possession and enjoyment of the property. As regards the above said case of the first respondent, the same has not been controverted by the revision petitioner by putting forth any materials. On the other hand, from the materials placed, it could be seen that the revision petitioner is well aware of the Court auction sale under which, the first respondent had purchased the property and it is also found that the revision petitioner had made attempts to stall the proceedings one way or the other, however, its attempts having ended in vein, it is found that the revision petitioner has knowledge about the purchase of the property in question by the first respondent in E.P.No.146 of 1996. Such being the position, the contention put forth by the revision petitioner that the sale obtained by the first respondent in the Court Auction Sale in E.P.No.146 of 1996 is a collusive one as such cannot be entertained sans any material pointing to the same.
6. As adverted to above, the revision petitioner having knowledge about the Court Auction Sale in favour of the first respondent and its attempts to stall the same having not been successful, as rightly put forth by the first respondent's counsel, if the revision petitioner had been aggrieved over the same, it should have taken up the matter further by way of either appeal or revision. However, it is found that the revision petitioner has not taken up the matter further as such as against the orders passed by the Court in E.P.No.146 of 1996 putting an end to its attempts to stall the Court Auction Sale. Therefore, it is found that the first respondent had purchased the property in question through Court Auction Sale and the same had also been confirmed and he had also taken possession of the same through Court process and all these facts are well known to the revision petitioner.
7. Despite having knowledge of the above mentioned facts, it is found that the revision petitioner again brought the same property for sale pursuant to the decree obtained by it in O.S.No.182 of 1995, however, suppressing the above mentioned facts and this would only lead to the conclusion that it is only the revision petitioner, who have not come out with clean hands and attempting to grab the property from the rightful owner and hence, it is found that the Court below had, accordingly, rejected its contentions and entertained the petition preferred by the first respondent.
8. Considering the above factors in whole, it is found that as rightly determined by the Court below, the revision petitioner has wrongfully brought the sale of the property belonging to the first respondent illegally as if the said property belonged to the judgment debtors of O.S.No.182 of 1995. However, when the property had already been purchased by the first respondent in accordance with law and also to the knowledge of the revision petitioner and when the judgment debtors of O.S.No.182 of 1995 have no legal right whatsoever in the property in question, particularly, at the time of filing of E.P.No.119 of 2007, it is found that as rightly decided by the Court below, the revision petitioner has wilfully brought the said property for sale and hence, accordingly, disallowed the case of the revision petitioner and allowed the case of the first respondent.
9. In the light of the above discussions, it is found that the impugned order of the Court below is perfect both legally as well as factually and it does not call for any interference from this Court.
10. Resultantly, the civil revision petition is dismissed with costs.
To:
The Sub Judge, Tuticorin.
.