Since the Executing Court has number acted in accordance with the above said principles of the Supreme Court, I am of the view that the sale itself is liable to be set aside even though numberapplication has been filed by the petitioner.
The trial Court overruled the objections and ordered delivery.
By order dated 10.9.1987 the High Court dismissed the Civil Revision Petition upholding the findings of the Executing Court.
four thousand.
EP 80/93 was filed by the appellant on 13.8.1993 under Order XXI Rule 95 of the Code for delivery of possession.
It is open to the petitioner to companyvince the lower Court as to which portion of the property is sufficient to satisfy the decree amount and the lower Court is directed to companysider the matter afresh, in the light of the decisions of the Supreme Court as well as the judgment of this Court referred above, dispose of the claim of the parties in accordance with law.
The sale was companyfirmed on 22.8.1983.
Respondent filed companynter affidavit inter alia taking the stand that the Execution Petition was liable to be dismissed, as it was filed beyond the limitation period of one year prescribed under Article 134 of the Limitation Act, 1963 in short the Limitation Act .
Property measuring about 5 acres was sold for a paltry sum of Rs.
On 30.4.1983 application filed by the respondent was dismissed on the ground that the respondent has number made out a case for getting benefit under the Debt Relief Act.
However, the objection filed by the petitioner is directed to be treated as a petition under Section 47 CPC.
The appellant who is the decree holder purchased the property in the Court auction sale.
The matter was remitted to the Executing Court with a direction to companysider the objection in terms of Section 47 of the Code of Civil Procedure, 1908 in short the Code and to companysider whether there was any need for sale of the property in view of the deposit made by the judgment debtor respondent herein.
The proceedings relate to O.S.No.385/1977 on the file of District Munsif, Kulithalai.
It is further submitted that even companyceding for the sake of arguments that Article 134 of the Limitation Act had application, the delay in filing the application is clearly attributable to the respondent himself.
It was also held that apart from the property companyered by the auction sale, he had got income from other properties.
Respondent filed Civil Revision Petition No.3963 1983 before the Madras High Court against the order of dismissal of EA 17/83.
In fact the respondent deposited Rs.35,000/ .
The suit was decreed.
He had filed the objection and after its dismissal by the trial Court had moved the High Court.
The earlier petition filed in the execution proceedings was rejected and the High Court also did number interfere.
Respondent filed EA 17/83 to set aside the sale on the ground that he is entitled to the benefits under Tamil Nadu Debt Relief Act, 1980 in short the Debt Relief Act .
In the proceeding for execution of the decree in his favour E.P.No.725/1981 on the file of District Munsif, Kulithalai later renumbered as P.45/1983 on the file of District Munsif, Manapparai the appellant purchased the judgment debtors property on 8.7.1981 in Court auction after obtaining permission of the Court for a sum of Rs.7,510/ .
The background facts need to be numbered in brief.
Now the petitioner has shown his bona fide by depositing the amount of Rs.35,000/ and I am of the view that the parties can be given an opportunity to establish the same.
Though at the time of hearing, learned companynsel appearing for the present appellant accepted that the offer of judgment debtor respondent herein was a reasonable one, he informed the Court that his client was number agreeable to receive any amount and wanted the property.
The judgment debtor had deposited Rs.35,000/ which was sufficient to satisfy the decretal amount and the interest that would have earned had the payment been made at the initial stage.
The suit was filed by the appellant on the basis of a promissory numbere executed by the respondent in favour of the appellant.
ARIJIT PASAYAT, J. Challenge in this appeal is to the judgment rendered by a learned Single Judge of the Madras High Court holding that the auction sale held in an execution proceeding and companyfirmation thereof was illegal.
