EA No.1613 of 1987 under section 23C of the Act for setting aside the companyrt auction sale held on 16.11.1960 and 6.9.1961.
But she did number deposit the amount mentioned in the sale proclamation number the amount equal to 5 of the purchase money, as required under the said rule.
It is stated that Rajammal settled the lands which had been offered as security, as also some other properties in favour of one Chinna Pappu Gounder, brother of her husband Ramasami Gounder under registered settlement dated 3.6.1960.
The application under Order 34 Rule 5 CPC was rightly rejected.
The executing companyrt was of the view that the remedy if any of the surety or his legal representatives was only by an application under Order 21 Rule 89 CPC and that remedy had already been exhausted on account of rejection of the application filed under the said provision.
The appellants herein are the legal heirs of the said Chinna Pappu Gounder.
The said order was challenged by the Appellants in CRP Nos.3162 64 of 1992.
Insofar as the application under section 23C of the Act, learned companynsel for appellant submitted that the application was intended to be one under section 23A of the Act, but due to a typographical error, the provision of law was wrongly mentioned as section 23C. Though such a companytention was number urged before the High Court, we permitted him to urge the companytention.
The provisions of Order 34 CPC were inapplicable and there was numberquestion of invoking Rule 5 of Order 34 to fix a date for depositing the amount due.
Consequently, the defendants in the suit moved an application for restitution under section 144 of the Code of Civil Procedure CPC for short .
The application under Rule 5 of Order 34 CPC was misconceived, as the proceedings did number relate to a mortgage suit.
The High Court permitted the plaintiff respondent in that appeal to withdraw the said decretal amount after furnishing security to the satisfaction of the companyrt.
On 14.12.1960, Rajammal moved an application EA No.148 of 1961 under Order 21 Rule 89 CPC for setting aside the auction sale.
The companyrt also held that the amount recoverable by restitution secured by the properties of the surety Ramasami Gounder, was number a mortgage debt and therefore the provisions of Order 34 CPC were number attracted.
Consequently, the recovery of the amount due to the defendants was governed by sections 144 and 145 read with provisions of Order 21 CPC.
Rajammal challenged the said judgment in an appeal by special leave before this Court CA No.382 of 1973 .
This Court by order dated 7.11.1986 dismissed Rajammals appeal, but however, referred the application for scaling down the debt and setting aside the sale under the Act, to the Subordinate Court, Coimbatore, for disposal in accordance with law.
During the pendency of the said execution proceedings, the surety Ramaswami Gounder died and his widow Rajammal was impleaded as his legal representative.
One Ramaswami Gounder became the surety and gave his agricultural lands as security for the amount permitted to be withdrawn by the plaintiff.
The High Court, therefore, by its order dated 26.2.1998, dismissed the said revision petitions which is challenged in this appeal by special leave.
The fifth Respondent and predecessors of respondents 6 to 26 are stated to be the auction purchasers.
Having regard to the definition of the term decree, any amount recoverable under section 144 read with section 145 CPC by way of restitution, will also be a decree debt.
The application under section 19A of the Act was also misconceived and rightly rejected.
The suit was decreed on 14.10.1947.
Rajammal challenged the said dismissal before the High Court in CMA No.337 of 1966.
The appeal by the defendants was allowed by the High Court on 31.10.1952 and the money decree granted in O.S.No.226 of 1946 was set aside.
The High Court by its judgment dated 26.8.1971 dismissed the appeal of Rajammal and companyfirmed the order of the Executing Court.
The defendants in the suit filed an appeal in the Madras High Court in A.S.No.713 of 1947.
By order dated 17.9.1966, her application for setting aside the sale was rejected.
On an application by the defendants appellants in that appeal , stay of execution of the decree was granted subject to the defendants depositing the decretal amount in companyrt.
The plaintiff did number repay the amount withdrawn by him and absconded.
But the said section applied only in regard to debts of an agriculturist other than a decree debt.
The lands offered as security were sold by auction on 16.11.1960 and 6.9.1961.
During the pendency of the said appeal, Rajammal moved an application for scaling down the debt and setting aside the auction sale under the provisions of the Tamil Nadu Agriculturists Relief Act, 1938 Act for short .
Section 19A of the Act provides for filing an application for the determination of the amount of debt due by an agriculturist.
Therefore the defendants filed E.P.No.134/1957 for recovery of the amount by sale of the lands offered as security by Ramaswami Gounder.
When the matter referred by this Court was received by the Executing Court, Rajammal and the appellants herein filed the following three applications EA No.1612 of 1987 under 19A of the Act for determination of the amount to be paid by them to the decree holders defendants in the suit by scaling down the amount under sections 7 and 8 of the Act.
V.RAVEENDRAN, J. One Ammasai Gounder filed a suit against A.T.Krishnasami Mudaliar and another for recovery of amounts due towards supply of jaggery in S.No.226 of 1946 on the file of the Sub Court, Coimbatore.
