Sethuramachandran vs Ravi

S. Palanivelu, J.—The petitioner is the defendant in O.S. No. 127 of 2001 on the file of Sub Court, Pattukkottai. He suffered decree in the said suit and the decree holder one Veera Selvam levied execution proceedings in E.P.No.63 of 2003 for sale of the attached properties. The Court conducted sale, in which the respondent was the auction purchaser. He got the Sale Certificate from the Court and filed E.A. No. 54 of 2007 for delivery of the property from this petitioner. In the mean while, one Palanivel brother of this petitioner filed a claim petition claiming that the properties attached belong to him. After enquiry, the petition was dismissed. There was no appeal in E.A. No. 54 of 2007. The Senior Bailiff of the Court was directed to deliver the property. He came to the property site along with the Surveyor and Village Administrative Officer. Even though the property was identified, since the delivery warrant did not contain the boundaries, they decided that without the presence of four boundaries in the delivery warrant, the property could not be delivered. As such, the delivery warrant was returned to the Court. Hence, an application in E.A. No. 3 of 2008 has been filed under Order 6 Rule 17 CPC to amend the execution petition in E.A. No. 54 of 2007.

In the counter filed by this petitioner, it is alleged that only on the strength of the Sale Certificate, delivery should be effected in favour of the auction purchaser and without amending the Sale Certificate in E.A. No. 54 of 2007, it ought not to be amended and hence, this petition is not sustainable.

On a perusal of the records, the learned Sub Judge, Pattukkottai allowed the application in E.A. No. 3 of 2008 observing that the Sale Certificate is also to be amended and an amendment of Sale Certificate has to be issued and necessary stamp papers shall be produced by the auction purchaser, then, the order for delivery could be passed, that merely because the warrant was returned for lack of four boundaries, there is no need to amend the same and that if the auction purchaser intends to take delivery, necessary orders will be passed and on that basis, the delivery warrant will be issued. Challenging the above said order, the petitioner is before this Court.

The learned Counsel for the petitioner would submit that without amending the Sale Certificate, E.A. No. 54 of 2007 could not be allowed.

A proper response may be made for this question by stating that the order passed by the Court below is more appropriate in this regard. It has been candidly observed in the impugned order that only when the Sale Certificate is amended, further proceeding could be taken up, that requiring the auction purchaser to furnish necessary stamp papers for drafting amended Sale Certificate and in case, the auction purchaser filing a fresh application for delivery, orders will be passed, issuing delivery warrant with the correct particulars including the four boundaries. This Court does not find any infirmity in the afore-said observation.

The learned Sub Judge in his order has stated that the property mentioned in the execution petition in E.A. No. 54 of 2007 is not disputed.

In the counter filed by him in E.A. No. 147 of 2007, he has mentioned that the property found in the Sale Certificate does not relate to the property sought to be delivered.

The above-said contention could not be countenanced for the reason that the properties described in the execution petition crept into all the records pertaining to the execution proceedings, so also into the Sale Certificate in E.A. No. 54 of 2007. In this regard, the contention loses its force.

The learned Counsel for the petitioners Mr. V. Janakiramulu would place reliance upon a Full Bench decision of the Supreme Court reported in State of Karnataka and Another Vs. All India Manufacturers Organization and Others, . in which Their Lordships have discussed about the scope of Section 11 containing the principles of res judicata, in which it is observed that if the issue raised in the subsequent proceeding had been specifically raised by one party and denied by the other party in the earlier previous proceeding, it is to be held that it would be abuse process of Court to re-examine the issues that had been raised or ought to have been raised in the earlier proceedings.

As far as this legal position is concerned, there is no specific averment in the counter filed by this petitioner. It is not shown that the present issues between the same parties were subject matters in a previously instituted proceedings. Hence, the petitioner could not take recourse to this decision.

The learned Counsel for the respondent Mr. P.T.S. Narendravasan garnered support from a decision reported in Ravinder Kaur Vs. Ashok Kumar and Another, , in which Their Lordships have held that the delaying tactics adopted by the judgment debtors by one way or the other have to be taken note of by the Courts and the Court must be cautious of the abuse of the process of Court by unscrupulous persons. It is further held in para:22 of the said judgment, which is as follows;

...Therefore, raising a dispute in regard to the description or identity of the suit schedule property or a dispute in regard to the boundary of the suit schedule property is only a bogey to delay the eviction by the abuse of the process of Court. Courts of law should be careful enough to see through such diabolical plans of the judgment-debtors to deny the decree-holders the fruits of the decree obtained by them. These type of errors on the part of the judicial forums only encourage frivolous and cantankerous litigations law�s delay and bring bad name to the judicial system.

He also cites a judgment of the Kerala High Court reported in Joseph alias Kunjachan Vs. Sathyappan, , wherein it has been held as follows:

...The decree holder purchaser thus has stepped into the shoes of the judgment-debtor. Persons who can raise any objection in regard to delviery of khas possession at best be the persons who could claim to be the co-owners along with the decree-holder purchaser.

The judgment-debtor under the circumstances, in my view, has ceased to be the owner of the properties and if that be so, he has no interest to be salvaged. He therefore has no manner of right to resist physical delivery of the properties to the decree-holder purchaser.

Following the cardinal principles contained in the decision of the Apex Court afore-mentioned, it is to be held that the filing of this civil revision petition is only a delaying tactics preventing the auction purchaser to enjoy the fruits of the auction and it could also be held that it is abuse process of Court. It has been categorically observed by Their Lordships that dispute with regard to the description or identity of the property is only a ruse to drag on the eviction proceedings. Once the Court auction sale proceedings were completed, it is to be legally termed that the judgment debtor ceases to be the owner of the properties and judgment debtor has no locus standi to object the physical delivery of the properties in favour of the auction purchaser.

In view of what have been stated above, I am of the considered opinion that the civil revision petition does not stand in the eye of law. There is no need to upset the upshot of the executing Court. The order impugned is confirmed. This civil revision petition is devoid of merits.

In fine, this civil revision petition is dismissed with costs. Consequently, connected M.P. is closed.