IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 14.10.2008
CORAM :
THE HONBLE MR. JUSTICE S.TAMILVANAN
C.R.P (NPD) No.1808 of 2008
and
M.P.No.1 of 2008
1. M/s. Saravana Theatre
Represented by its Partner
Melpatti Road, Gudiyatham.
2. K.M.Mahalingam
3. K.M.Krishnamoorthy
4. K.M.Durairaj .... Petitioners
vs.
1. T.Ramalingam
2. K.M.Gopal
3. Indirani
4. K.M.Velumani
5. A.Jayalakshmi
6. T.Shanthi
7. M.Jothi
8. M.Usha .... Respondents
Civil Revision Petition filed against the Order and Decreetal Order, dated 28.04.2008 passed in E.A.No.15 of 2008 in E.P.No.31 of 2005 in O.S.No.172 of 1999 on the file of the Subordinate Court, Gudiyatham.
For Petitioners : Mr.T.V.Ramanujam, Senior Counsel
for Mr.T.V.Krishnamachari
For Respondents : Mr.S.V.Jayaraman, Senior Counsel
for Mr.R.Karthikeyan for R1
ORDER
This Civil Revision Petition has been preferred against the Order and Decreetal Order, dated 28.04.2008 made in E.A.No.15 of 2008 in E.P.No.31 of 2005 in O.S.No.172 of 1999 on the file of the Subordinate Court, Gudiyatham.
2. The petitioners are the respondents 1 to 3 and 5 in the E.A before the Executing Court. The first respondent herein / auction-purchaser has filed the Execution Application under Order VI Rule 17 of the Code of Civil Procedure, seeking amendment. The Court below considering the facts and circumstances and the arguments advanced by both sides, has allowed the application. Aggrieved by which, the Civil Revision Petition has been preferred.
3. The first respondent herein / auction-purchaser has sought permission to amend the schedule of property in attachment before Judgment Application as well as in the proclamation and sale certificate as detailed in the petition as directed by this Court in the order passed in C.R.P (NPD) No.3930 of 2007. According to the first respondent / auction-purchaser, he purchased the property, M/s.Saravana Theatre in the court auction sale and the sale was also confirmed by the court below and also taken delivery of possession of the property. The revision petitioners 1 to 3 preferred revision against the order passed in E.A.No.76 of 2007 in C.R.P (NPD) No.3930 of 2007. As per the order, dated 28.02.2008 made in C.R.P (NPD) No.3930 of 2007, this Court dismissed the revision, however, by setting aside a portion of the finding of the executing court, held that the respondents shall take proper steps before taking delivery of possession of the property, for rectifying the Survey Number and extent in the schedule to the ABJ application as well as in the sale proclamation and sale certificate in accordance with law.
4. According to the learned Senior Counsel appearing for the first respondent / auction purchaser, pursuant to the order passed in the aforesaid Civil Revision Petition, E.A.No.15 of 2007 was filed before the Executing Court, under Order VI Rule 17 CPC. As per the amendment sought for, the first respondent has sought an order to replace the survey number and extent in the schedule of property mentioned in attachment application, sale proclamation and sale certificate as follows :
“M/s. Saravana Theatre, with its land and building and projector and generator and all furniture and all electric fittings situated in Vellore District, Gudiyatham Taluk, Seruvangai Village, Melpatti Road, Old Sr.No.70/2, New Sr.No.70/2A, acre 0.79 and compound wall situated in S.No.70/1.”
The amendment sought for has been allowed by the Court below, as prayed for, against which this Revision Petition has been preferred.
5. Mr.T.V.Ramanujam, learned Senior Counsel appearing for the revision petitioners submitted that the first respondent herein, being an auction-purchaser and not a party to the suit cannot file any application , seeking to amend the schedule of property in the attachment before the Judgment (ABJ) application, as well as in proclamation and sale certificate, as detailed in the application in E.A.No.15 of 2008. According to the learned Senior Counsel, the auction-purchaser is only a third party to the suit and as such, he cannot seek any amendment in the schedule of property of the application for attachment before judgment as well as in the proclamation. The learned Senior counsel further submitted that there are three prayers in the Execution Application, since the first respondent / auction-purchaser has not filed separate applications for each prayer, the court below could have dismissed the application. In the written arguments submitted on behalf of the revision petitioners, it has been stated that as per the application for attachment before the Judgment in I.A.No.163 of 1995, the property has been stated as follows :
“M/s. Saravana Theater with projectors and generators bearing S.No.70/1 extent of 0.02.5 in Seruvangi Village, Gudiyatham Taluk. ”
It has been admitted by both the parties that the aforesaid Survey Number 70/1 is not related to Saravana Theater in Seruvangi Village, Gudiyatham Taluk and its correct Survey Number is S.No.70/2. The petitioners have further contended that as per ‘C-Form’ license, the Saravana Theater is having a big building measuring about 7842 sq.ft, apart from furnitures, electrical fittings, sound systems etc. According to the learned Senior Counsel for the petitioners, as there was no Saravana Theater in S.No.70/1, the bailiff could not have attached the property and subsequently could not have handed over the possession of the property to the first respondent / auction-purchaser.
6. It is seen that as per E.A.No.15 of 2008, the first respondent / auction-purchaser has sought for an amendment to the schedule of property as follows :
“M/s. Saravana Theater with its land and building and projector and generator and all furniture and all electrical fittings situated in Vellore District, Gudiyatham Taluk, Seruvangi Village, Melpatti Road, Old S.No.70/2, New S.No.70/2A acre 0.79 and compound wall situated in S.No.70/1.”
The revision petitioners have contended in the grounds that the Executing Court has no jurisdiction to amend the schedule to the attachment before judgment (ABJ) application, which was filed in the suit. It has been further stated by the petitioners that the Executing Court cannot amend the proclamation of sale, when once the sale has been concluded and if the proclamation of sale has to be amended, according to the learned Senior Counsel for the petitioners, the only remedy is for fresh sale and that there is no question of amendment of sale certificate at the stage.
7. Per contra, Mr.S.V.Jayaraman, learned Senior Counsel appearing for the first respondent / auction-purchaser submitted that Saravana Theater was owned by the father of the petitioners 2 and 3 and the respondents 2 to 9. The suit in O.S.No.172 of 1999 was filed by one Moogambiga Financiers, Gudiyatham against the first petitioner herein and its partners, seeking for recovery of a sum of Rs.12,14,017/- and ultimately, the suit was decreed by the Judgment and Decree, dated 29.01.2007. Pursuant to the decree, the Decree-holder filed E.P.No.31 of 2005 to recover a sum of Rs.54,83,870/-, which fell due as on 24.01.2007. The property including the Saravana Theater with projectors and generator situated at Seruvangi Village, Gudiyatham was admittedly, the subject matter of attachment before Judgment on the file of the Sub-Court, Gudiyatham and as per Execution Proceeding, the said property Saravana Theater was brought for court auction sale on 24.01.2007 and the first respondent was declared as the highest bidder for a sum of Rs.30,30,000/- and he deposited the amount into court, then auction sale was confirmed and sale certificate was issued by the Sub-Court, Gudiyatham on 17.04.2007 in favour of the first respondent / auction-purchaser.
8. As the petitioners did not handed over the possession of the property, the first respondent herein filed E.A.No.76 of 2007 in E.P.No.31 of 2005 on the file of the Sub-Court, Gudiyatham, under Order 21 Rule 95 CPC, seeking an order for delivery of possession of the property, that was sold in the public auction. The petitioners filed counter in E.A.No.76 of 2007 raising objection for taking over delivery of possession of the property on the ground that though the property was attached and sold in the court auction, mentioned as Saravana Theater with projector and compound wall, the Survey Number stated therein is S.No.70/1, which is classified as Government Kalvai (canal), poromboke land and that the Saravana Theater is situated in S.No.70/2. The E.A.No.76 of 2007 was allowed by the Executing Court, after the enquiry, holding that there is no dispute with regard to the identity of the property, Saravana Theater, hence the S.No.70/1, stated in the sale proclamation denotes only the S.No.70/2, as per the extent of the theater.
9. Accordingly, the court bailiff handed over the possession of the property, Saravana Theater on 12.12.2006 and delivery was recorded by the court on 14.12.2007. Aggrieved by which, the petitioners herein filed C.R.P (NPD) No.3930 of 2007 before this Court, wherein this Court has passed an order as follows :
“The respondents shall take proper steps before taking delivery of the property for rectifying Survey Numbers and extent in the schedule to the ABJ application as well as in the proclamation and sale certificate in accordance with law.”
As per the order of this Court, dated 28.02.2008 made in C.R.P (NPD) No.3930 of 2007, only the following portion of the observation of the court below made in E.A.No.76 of 2007 has been set aside ” vdnt r/vz; 70/1y; vd;W Fwpg;gpl;Ls;s rutzh jpnal;lh; r/vz; 70/2y; cs;sij jhd; fhl;LfpwJ vd;W ,e;ePjpkd;wk; Kot[ bra;fpwJ/” In other aspects, as per the findings of this Court, the revision petition preferred by the petitioners herein fails and accordingly, the same was dismissed. The aforesaid set aside portion of the finding of the Executing Court in E.A.No.76 of 2007 is that the Survey Number of Saravana Theater, mentioned as S.No.70/1 in the sale proclamation and sale certificate denotes only S.No.70/2. The aforesaid portion of the finding of the E.P.Court was set aside by this Court, by order, dated 28.02.2008.
10. Mr.S.V.Jayaraman, learned Senior Counsel appearing for the first respondent submitted that it is an admitted fact that there is only one theater in Gudiyatham in the name of ‘Saravana Theater”, which is admittedly situated in S.No.70/2 and the extent is 0.79 acres, as per revenue records. It is not in dispute that the aforesaid theater was attached by the order passed in I.A.No.163 of 1995 on the file of the Sub-Court, Gudiyatham.
11. As per the schedule of property in the Interloctuory Application, the aforesaid Saravana theater with projectors, generators and compound wall of the said theater is stated. However, the survey number was wrongly stated as 70/1 instead of 70/2 and the extent was also wrongly stated as 0.02.5 hectares, instead of 0.79 acres. According to the learned Senior Counsel appearing for the first respondent / auction-purchaser, it was only a mistake committed in mentioning the survey number and extend of the schedule of property, however, there is no dispute with regard to the identity of the property, Saravana Theater, that was attached and brought for public auction and therefore, it could be amended as per law before the E.P.Court. As per the impugned order, the court below has allowed the amendment application filed by the first respondent / auction-purchaser.
12. The first contention raised by Mr.T.V.Ramanujam, learned Senior Counsel appearing for the revision petitioners is that the first respondent, auction-purchaser is not a party to the suit, hence, he cannot file any petition to amend the schedule to the application for attachment before judgment, as the suit has already been disposed of.
13. Mr.T.V.Ramanujam, learned Senior Counsel appearing for the petitioners, in support of his contention, citing the decision Raja Thakur Barmah and others vs. Jiban Ram Marwari and others, reported in Vol XXVI MLJ 89, submitted that a wrong property has been attached and brought for sale, hence, the auction-purchaser cannot seek amendment of the schedule of property before the Executing Court or in the suit. The learned Senior Counsel drew the attention of this Court to the following finding of the Privy Council in the aforesaid decision that ” if by a mistake the wrong property was attached and an order made to sell it, the only course open to the decree-holders on the discovery of the mistake was to commence the proceedings over again. They could not turn an authority to sell one property into an authority to sell another and a different one.”
14. In the instant case, it is not in dispute that the property attached and sold in public auction is only Saravana Theater, a well known property to the public at Seruvangi Village in Gudiyatham Taluk, only the survey number and extent of the property has been wrongly stated. Therefore, the identity of the property is not in dispute, as contended by the learned Senior Counsel appearing for the auction-purchaser and hence, it cannot be said that by mistake a wrong property was attached and brought for sale. Hence, the decision of the Privy Council referred to above is not applicable to the case on hand.
15. Mr.S.V.Jayaraman, learned Senior Counsel appearing for the first respondent / auction-purchaser relying on the decision of the Hon’ble Supreme Court in Harnandrai vs. Debidutt, reported in AIR 1973 SC 2423, submitted that the auction-purchaser can very well maintain the application for amendment. In the aforesaid decision, the Hon’ble Apex Court has held at page number 2427 as follows :
“It is important to remember that after the decision of the Privy Council in Ganapathy’s case, 45 Ind App 54 = (AIR 1917 PC 121) there has been an amendment of Section 47 as a result of which the purchaser at a sale in execution of a decree, whether he is the decree-holder or not, is unquestionably a party to the suit for the purpose of Section 47. Having regard to this, all questions arising between the auction-purchaser and the judgment-debtor must in our view be determined by the executing court and not by a separate suit.”
As per the decision of the Hon’ble Apex Court, after the amendment of Section 47, the auction-purchaser is unquestionably a party to the suit for the purpose of Section 47 CPC and whether he is a decree-holder or not is immaterial. It is a settled proposition of law that all questions arising between the auction-purchaser, decree-holder and judgment-debtor must be determined by the executing court and not by separate suit. Therefore, this Court is of the view that the petitioner, being the auction-purchaser in the eye of law is only a party to the suit and accordingly, file he has locus standi to file the application for amendment.
16. It is an admitted fact that the revision petitioners and respondents 2 to 8 herein have suffered a decree in O.S.No.172 of 1999 on the file of the Sub-Court, Gudiyatham. The decree-holder, Moogambigai Financiers had filed the suit and the Saravana Theater belongs to the judgment-debtors was attached before the judgment, which is not in dispute and subsequently, the suit was also decreed. Pursuant to the decree, the aforesaid Moogambigai Financiers brought the property for sale in court auction. It is not in dispute that in the sale proclamation, the property that was brought for sale was specifically stated as ‘Saravana Theater’ with projector, generator and compound wall situate at Seruvangi Village, Gudiyatham Taluk. In the order of attachment before judgment and the sale proclamation, the sub-division of the survey number has been wrongly quoted as S.No.70/1 instead of 70/2, the extent was also not correctly stated. However, as contended by the learned Senior Counsel appearing for the first respondent / auction-purchaser, there was no dispute with regard to the identity of the property, ‘Saravana Theater’ as per the evidence of R.W.1 and the revenue records, the same is situate in S.No.70/2 with an extent of 0.79 acres.
17. It is not in dispute that the first respondent / auction-purchaser was the successful bidder for the bid amount Rs.30,30,000/- and the entire sale consideration was deposited into court by him and the sale was also confirmed by the Sub-Court, Gudiyatham. According to the learned Senior Counsel for the first respondent / auction-purchaser, the decree-holder has also withdrawn the amount from the court deposit and sale certificate was issued in the name of the first respondent / auction-purchaser, stating the property as ‘Saravana Theater’ and therefore, it is not open to the petitioners / judgment-debtors at this stage to raise a defence that a wrong property was attached and sold in public auction. The learned Senior Counsel for the auction-purchaser submitted that there was only a mistake in respect of the sub-division of the survey number and the extent, which will not affect the right of the auction-purchaser. Similarly, the revision petitioners cannot claim any right based on the apparent mistake in quoting the sub-division number and extent, since there is no dispute with regard to the identity of the property. In support of his contention, the learned Senior Counsel cited the decision Sheodhyan Singh vs. Mst. Sanichara Kuer, reported in 1961 MLJ 116, wherein the Hon’ble Apex Court has ruled that the case was only of misdescription and the identity of the property sold was well established, namely, that it was plot No.1060. The matter might have been different if no boundaries had been given in the final decree for sale as well as in the sale certificate and only the plot number was mentioned and held that the purchaser was entitled to plot No.1060.
18. In the light of the aforesaid decision, the Court has to consider whether the identity of the property has been established by the auction-purchaser, without any doubt and in such circumstance, even the four boundaries are not required for further description of the property. In the instant case, admittedly, the property that was attached before the judgment was M/s.Saravana Theater with projectors and generators in Seruvangi Village, GudiyathamTaluk. In the sale proclamation in E.P.No.31 of 2005, description of the property is given as M/s. Saravana Theater with generator and compound wall situated at Seruvangi Village, Gudiyatham Taluk. In the attachment application and sale proclamation, the survey number is stated as 70/1, instead of 70/2 with different extent of land.
19. However, it is not in dispute that the first respondent / auction-purchaser was the highest bidder for a sum of Rs.30,30,000/- and the court auction sale was confirmed in his favour. Similarly, the petitioners have not challenged the attachment before judgment, sale proclamation, court auction sale, confirmation of sale wherein Saravana Theater has been stated as the property and the aforesaid legal proceedings have undoubtedly reached finality. The E.A.No.76 of 2007 was filed after getting sale certificate for taking delivery of possession, wherein the Executing Court has given a finding that in Gudiyatham Taluk, there is only one Saravana Theater and therefore, there is no dispute with regard to the identity of the property, that was sold by court auction and further, held that S.No.70/1 denotes only S.No.70/2, accordingly, the delivery was effected by the Executing Court on 17.12.2007. Only the finding of the E.P.Court presuming S.No.70/1 as S.No.70/2 was set aside in the earlier revision.
20. The revision petitioners / judgment-debtors have stated in their written submission that S.No.70/1 is Kaalvai, a Government canal poromboke and its extent is stated only 6 = cents. It is not the case of the petitioners and other judgment-debtors that they have some other property in S.No.70/2, apart from Saravana Theater, which was attached and sold in the court auction.
21. At this juncture, it is relevant to go through Section 47 of the Code of Civil Procedure, which reads as follows :
“47. Questions to be determined by the Court executing decree (1) All questions arising between the parties to the suit in which the decree was passed, or their, representatives, and relating to the execution, discharge or satisfaction of the decree, shall be determined by the court executing the decree and not by a separate suit. ”
22. It is clear that the revision petitioners, some of the judgment-debtors cannot challenge the validity of the order of attachment before judgment, sale proclamation, auction sale and the confirmation of sale at this stage. In all these proceedings, admittedly, the schedule of property is Saravana Theater, situate at Seruvangi Village, Gudiyatham Taluk, which was owned by the judgment-debtors, including the petitioners herein. The Revenue records and the evidence of R.W.1 clearly show that the theater is in S.No.70/2. The other Survey Number 70/1 is only 6 = cents of Government Kaalvai (Canal), poromboke land and therefore, the contention of the petitioners that the auction purchaser had knowingly purchased the said land cannot be accepted, when he has deposited a sale consideration of Rs.30,30,000/- in the court towards the property Saravana Theater.
23. As per Section 47 CPC, it is clear that the Execution Application for delivery of possession of the property, pursuant to the confirmation of auction sale, was is within the purview of execution, discharge and satisfaction of the decree, between the parties to the suit, namely, the auction-purchaser, decree-holder and judgment-debtor and therefore, the executing court has got jurisdiction to decide the same. Though the petitioners 1 to 3 herein had filed earlier revision in C.R.P (NPD) No.3930 of 2007, this Court, by order, dated 28.02.2008, has set aside only a portion of the findings of the executing court in E.A.No.27 of 2007, whereby the Executing Court had held that Saravana Theater stated in S.No.70/1 denotes only S.No.70/2. In all other aspects, the revision petition filed by the petitioners 1 to 3 herein was dismissed. It is therefore made clear from the earlier order referred to above and the available materials on record that there is no legal grievance available to the revision petitioners, since they suffered a decree and the attachment, sale proclamation and subsequent court auction sale relating to the property, Saravana Theater, once belonged to the petitioners and the respondents 2 to 8 herein, have reached finality.
24. As per the well known legal maxim ‘ubi jus ibi idem remedium’, where there is a right there is a remedy. In other words, without a legal remedy, there cannot be any right. In the same analogy, this Court is of the view that without any legal grievance, no one can maintain a legal dispute before the court of law. In the Civil Revision Petition, the petitioners, some of the judgment-debtors, without any legal grievance, cannot maintain the revision.
25. In this case, it is clear that the court auction sale was confirmed, sale certificate was also issued in favour of the first respondent / auction-purchaser, with regard to the property, Saravana Theater, Gudiyatham, which reached its finality. It is not the case of the revision petitioner and other judgment-debtors that there is any other property, left out in S.No.70/2, apart from Saravana Theater at Gudiyatham owned by them and brought for court auction sale. In such circumstances, it is not open to the petitioners to challenge the impugned order passed by the court below, saying that the auction-purchaser could have filed three separate applications for the amendment of the survey number and extent and to approach the trial court, since mere technicalities cannot prevail over justice, in the absence of any legal grievance, since there is no subsisting rights available to the judgment-debtors, including the petitioners herein in the property attached and sold in court auction. This court is of the considered view that the objections raised by the petitioners is without any subsisting right and as such is not sustainable in law.
26. As per order, dated 28.02.2008 passed by this Court in C.R.P (NPD) No.3930 of 2007, the revision preferred by the petitioners 1 to 3 herein has been dismissed and this Court has directed the first respondent / auction-purchaser to take proper steps, before taking delivery of the possession of the property, for rectifying survey number and extent in the schedule of property, in order to provide an opportunity to the auction-purchaser, for rectifying the mistake in the sale certificate obtained by him, hence, I am of the view that the impugned order is well within in the purview of Section 47 of the Code of Civil Procedure, towards execution, discharge and satisfaction of the decree, which will not give any new lease to the judgment-debtor for extending the litigation further, after it reached its finality and therefore, the revision petition fails and accordingly, the same is dismissed.
27. In the result, confirming the order passed by the court below, this Civil Revision Petition is dismissed. Consequently, connected miscellaneous petition is also closed. However, there is no order as to costs.
14.10.2008
Index : Yes
Internet : Yes
tsvn
To
The Subordinate Court
Gudiyatham.
S.TAMILVANAN, J
tsvn
Order in
C.R.P(NPD) No.1808 of 2008
14-10-2008