This civil revision petition is filed by the judgement debtors/defendants, challenging the sale ordered by the learned Subordinate Judge, Periakulam in EP.No.24/2007 in OS.No.319/2001 by order dated 25.2.2009 on the ground that the decree holder has wrongly mentioned the door numbers of the property as Old No.7-4-18, New No.8-4-18, instead of Old No.7-2-18, New No.8-2- 18 and has furnished encumbrance certificate suppressing the fact that the suit property under attachment has already been mortgaged with M/s.Periyakulam Cooperative Land Development Bank under a mortgage deed dated 7.3.1996 and also an agreement of sale has been executed in favour of one Mohammed Ismail by the judgement debtor on 25.7.2007 and in spite of the fact that the above said factors were brought to the notice of the executing court, the executing court declined to suspend the court action sale fixed on 3.11.2008
2. There is no dispute that the details of four boundaries to the suit property has been correctly mentioned and it is not the case of the petitioners that the identity of the property itself was in question in view of the incorrect door numbers given in the execution petition as well as in the sale proclamation.
3. It is seen that the respondent/decree holder has produced a encumbrance certificate for 14 years from 1993 to the order of attachment before judgement and no encumbrance was shown in the suit property. The encumbrance produced by the petitioner relates to the period from 1.1.1996 to 14.10.2008. It is pertinent to note that the objection has not been made either by the mortgagee or by the intending purchaser with regard to the above encumbrances. In IP.NO.15/2007, the mortgage executed by the petitioners in favour of the M/s.Periyakulam Cooperative Land Development Bank is included and the same is pending. Further, the petitioners have no right to maintain this petition under Section 151 of CPC when they have not raised those issues either in the EP or when the sale proclamation was made. There can be no dispute that if the mortgage was in existence when the attachment was effected, then the attachment is subject to the right of the mortgagee as secured creditor, but the claim has not been made by the mortgagee and the objection is made only by the judgement debtor, which cannot be sustained.
4. The learned counsel for the petitioners relied on the decision of the Honourable Supreme Court rendered in the case of Kancherla Lakshminarayana Vs. Mattaparthi Syamala and others [2008-2-CTC-774], which pertains to the claim preferred under Order 21 Rule 58 against the attachment of immovable property by the purchaser under agreement of sale, who had filed the suit for specific performance and in the said facts, the Honourable Supreme Court has held that the purchaser under the agreement of sale could file objection in the EP filed by the wife of the vendor against the vendor for sale of the said property in discharge of the maintenance decree and thus set aside the order of the High Court and the executing court, dismissing such objection without considering it on merits. The facts of the present case are distinguishable from that of the decision cited supra and the said decision is not applicable to the facts of this case.
5. It is held by the Honourable Supreme Court in the said case that from the language of clause (a) of the proviso to Rule 58(1) of Order 21 of Civil Procedure Code that where any objections are taken to the attachment on the ground that the said property is not liable to attachment, the court has to proceed to adjudicate upon the claim or objections in accordance with the Rule. In this case, no such claim is made either by the mortgagee or by the intending purchaser in the agreement of sale and the objections are made by the judgement debtors/petitioners under Section 151 of CPC and the same is not sustainable. As such, the order passed by the court below does not suffer from any infirmity or illegality and no interference by this court is warranted.
6. In the result, this civil revision petition is dismissed. No costs. Consequently, the connected MP is closed.
Srcm To:
The Subordinate Court, Periyakulam.