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Judgment
The Civil Revision Petitioners/Petitioners have filed the present Civil Revision Petition as against the order dated 9/11/2004 in an unnumbered
I.A in S.R. No. 3782 of 2004.
The Executing Court/learned Sub-Judge, Virudhunagar District at Srivilliputhur, while passing the impugned order in an unnumbered I.A in S.R.
No. 3782 of 2004 on 9/11/2004 has held that ""since delivery of the petition mentioned property was ordered in E.A. No. 72 of 2004, this petition
is rejected.
Being dissatisfied with the rejection order passed by the Executing Court in an unnumbered I.A in SR. No. 3782 of 2004 dated 9/11/2004, the
revision Petitioners/Petitioners have projected the Civil Revision Petition before this Court as aggrieved persons.
According to the learned Counsel for the revision Petitioners, the third Respondent is the father of the revision Petitioners and as per Will dated
25/9/1970 executed by the father of the third Respondent, Mr. Nagalinga Chettiar, he has no right to encumber or mortgage the suit property in
O.S. No. 176 of 2004 on the file of the learned District Judge, Virudhunagar District at Srivilliputhur and moreover, in Section 47 Petition, the
ownership in respect of a property can be decided by a Court of law even at the execution stage but however, the Executing Court has not
provided the Petitioners with a reasonable opportunity to hear the Petitioners which has resulted in serious miscarriage of justice.
In short, it is the contention of the learned Counsel for the revision Petitioners that the rejection order dated 9/11/2004 passed by the Executing
Court in an unnumbered I.A in S.R. No. 3782 of 2004 is an invalid and an erroneous one besides being opposed to the principles of natural justice
and therefore, prays for allowing the Civil Revision Petition in furtherance of substantial cause of justice.
In response, it is the submission of the learned Counsel for the first Respondent/Bank that initially the second Respondent has been the
successful auction purchaser in respect of the property covered in O.S. No. 176 of 2006 on the file of the District Court, Virudhunagar District at
Srivilliputhur and later, the second Respondent has sold the property in question to a third party and in O.S. No. 176 of 2004, the third parties
interest has come into an operative play and the third party has also been added as one of the parties to the suit in O.S. No. 176 of 2004 and as
on date, the said suit is pending adjudication before the District Court, Virudhunagar District at Srivilliputhur.
It is also the contention of the learned Counsel for the first Respondent that the Executing Court has rejected the unnumbered I.A in S.R. No.
3782 of 2004 on the ground that the delivery of the Petitioners mentioned property therein has been ordered in E.A. No. 72 of 2004 and
therefore, nothing survives for adjudication in the present Civil Revision Petition before this Court.
However, the learned Counsel for the second Respondent (earlier auction purchaser) submits that the second Respondent, who has been the
earlier first auction purchaser of the properties mentioned in O.S. No. 170 of 2004 on the file of the District Court, Virudhunagar District at
Srivilliputhur has sold the property to a third party subsequent to the filing of the suit in O.S. No. 176 of 2004, filed by the revision Petitioners
herein and according to him, the revision Petitioners/Petitioners being the strangers to Section 47 Application in an unnumbered I.A in S.R. No.
3782 of 2004 is not entitled to maintain the said application in law because of the simple fact that the strangers as per Section 47 of the Code of
CPC cannot maintain Section 47 Application before the Executing Court.
It is to be pointed out that questions arising between the parties who are not opposed to each other or between a party and a stranger do not
fall u/s 47 of the Code of Civil Procedure. Further, a dispute between a decree holder and his assignee is not a dispute between the parties to the
suit and a separate suit relating to the validity of the assignment, is a competent one as per the decision in SARAB SUKH v. PREM DUTT
reported in AIR 1937 Lah 465. Also in SHEM LAL v. AMAR PRASAD reported in (1917) 2 P LJ 219, it is held that a judgment debtor who
objected to a sale of a property on the ground that he had acquired fresh title to it, subsequent to the decree, is held not to be a party to the suit in
respect of that objection. Moreover, a benamidar is neither a party nor a representative of a party within Section 47 of Code of CPC as per
decision in Yepuri Venkamma Vs. Pabbisetti Parthasarathi and Brothers and Others, .
Added further, the exercise of power as per Section 47 of the Code of CPC is microscopic and lies in a very narrow inspection hole.
It is to be noted that the ingredients of Section 47 of Code of CPC squarely apply only to the parties to the proceedings and the revision
Petitioners/Petitioners being third parties to the proceedings in E.P. No. 40 of 1999 in O.S. No. 1206 of 1993 on the file of the Sub-Court,
Virudhunagar District at Srivilliputhur, they cannot maintain the said Section 47 Application.
It transpires from the records that in V.C.M.P No. 62 of 2004 in C.M.P. No. 1966 of 2004 in C.R.P. No. 339 of 2004, this Court on
28/12/2004 has passed the following conditional order:
Interim stay is made absolute subject to the Petitioner depositing a sum of Rs. 7,02,110/- in two instalments.
The first instalment of Rs. 3,02,110/- should be deposited to the credit of E.P. No. 40 of 1999 within six weeks from the date of receipt of the
copy of the order and the remaining four lakhs should be deposited within six weeks, thereafter, failing compliance of the condition, the stay shall
stand automatically vacated.
Later, by virtue of the order passed by this Court on 4/3/2005 in C.M.P. No. 1824 of 2005 in C.R.P.(NPD) No. 339 of 2004, this Court has
further granted ten days extension period to satisfy the conditional order passed by this Court earlier in V.C.M.P. No. 62 of 2004 dated
28/12/2004 from the date of receipt of the copy of the order. Both the said orders passed in the aforesaid M. Ps have not been satisfied by the
Petitioners.
Be that as it may, in view of the fact that the Civil Revision Petitioners/Petitioners being third parties/strangers to the proceedings in E.P. No.
40 of 1999 in O.S. No. 1206 of 1993 on the file of the Sub-Court, Virudhunagar District at Srivilliputhur and also bearing in mind another
important fact that the revision Petitioners have filed O.S. No. 176 of 2004 on the file of the District Court, Virudhunagar District at Srivilliputhur,
praying for the relief of declaration that the auction sale in favour of the second Respondent (first auction purchaser) is only void, this Court
disposes of the Civil Revision Petition by directing the Petitioners/third parties to prosecute their remedies before the District Court in pending O.S.
No. 176 of 2004 on the file of the District Court, Virudhunagar District at Srivilliputhur in regard to the relief sought for by them.
However, liberty is granted to the Revision Petitioners and the other Respondents herein including the subsequent purchaser (who is the party
to the present Civil Revision Petition) to raise all factual and legal pleas before the trial Court namely the District Judge, Srivilliputhur in O.S. No.
176 of 2004 and to seek appropriate remedy in the manner known to law and in accordance with law.
No costs. Consequently, the connected Miscellaneous Petitions are closed.