(Prayer: Civil Revision Petition filed under Section 115 of CPC, to set aside the fair and decreetal order passed in E.A.No.58 of 2006 in E.P.No.90 of 2005 in O.S.NO.48 of 2004 dated 08.03.2019 by the Court II Additional District Munsif, Virudhachalam.)

1. The auction purchaser in a Court auction sale, aggrieved by the order passed by the executing Court, allowing an application under Section 47 of CPC, is the revision petitioner.

2. I have heard Mr.P.Ravi Shankar Rao, learned counsel for the petitioner, Mr.N.Suresh, learned counsel for the 1st respondent, Mr.Ayyachamy, learned counsel for the 2nd respondent and Mr.R.Thirugnanam, learned counsel for the 3rd respondent.

3. Mr.P.Ravi Shankar Rao, learned counsel appearing for the revision petitioner would submit that the very application filed by the 1st respondent/judgment debtor, invoking the provisions of Section 47 of CPC was not maintainable and the only remedy available to the 1st respondent was to invoke Order XXI Rule 90 of CPC, seeking to set aside the auction sale in favour of the revision petitioner. He would further submit that the suit came to be decreed on 01.07.2004 and even pending the suit, the order of attachment before the judgment had been passed on 26.06.2004 in I.A.No.322 of 2004.

4. Inviting my attention to the attachment being communicated to the Sub-Registrar on 15.07.2004, the learned counsel for the petitioner would submit that even prior to the filing of the EP, the attachment of the subject property was very much subsisting and in force. He would further state that even in the EP proceedings, notice was ordered by the Court on 12.04.2005 and even though notice was sent to the registered address of the 1st respondent, the 1st respondent refused to receive notice and thereafter, the executing Court proceeded to auction the suit property and the revision petitioner was the successful bidder and the sale itself came to be confirmed on 13.10.2005 and the sale certificate was also issued in favour of the revision petitioner on 17.11.2005.

5. It is also the contention of the learned counsel for the petitioner that the judgment debtor, in order to defeat the claim of the decree holder, as well as the auction purchaser, filed a suit for partition in O.S.No.33 of 2005 and a preliminary decree was passed on 29.07.2005 in the said suit. It is also the contention of the learned counsel for the petitioner that the property was also delivered to the revision petitioner by the Court Bailiff on 03.01.2005 in E.A.No.851 of 2005. In such circumstances, it is the submission of the learned counsel for the petitioner that the judgment debtor, only in order to get over his inability to challenge the auction sale under Order XXI Rule 90 of CPC, which is time bound and also to bypass the mandatory requirement of deposit of a portion of the consideration as mandated under Order XXI Rule 89 of CPC, has invoked Section 47 of CPC.

6. The learned counsel for the petitioner would therefore submit that the trial Court has erroneously allowed the Section 47 of CPC application, when the 1st respondent has invoked a wrong provision of law, only to get over the shortcomings and inability of the 1st respondent to legitimately challenge the auction sale under Order XXI Rule 90 of CPC. The learned counsel for the petitioner would rely on the following decisions:

                     1.A.P.V.Rajendran Vs. S.A.Sundararajan and others, reported in Law Weekly 93.

                     2.S.A.Sundararajan Vs. A.P.V.Rajendran, reported in (1981) 2 SCR 600.

                     3.Shri Radhey Shyam Vs. Shyam Behari Singh, reported in 1970 (2) SCC 405.

                     4.K.M.Balasubramanian Vs. C.Loganathan, reported in 2017 (1) MWN 372.

                     5.Annapurna Vs. Mallikarjun and another, reported in (2014) 7 SCR 299.

                     6.Nachayee Ammal and others Vs. Pichaimutu, reported in 1992 1 LW 288.

                     7.Ram Karan Gupta Vs. J.S.Exim Limited and others, reported in 2012 (13) SCC 568.

                     8.Dadi Jagannadham Vs. Jammulu Ramulu and others, reported in (2001) Supp 2 SCR.

                     9.G.R.Selvaraja (Dead) through LR's Vs. K.J.Prakash Kumar and others, reported in 2025 INSC 1353.

                     10.M/S.Jagan Singh and Co., Vs. Ludhiana Improvement Trust and others, 2022 14 S.C.R. 747.

7. Mr.R.Thirugnanam, learned counsel appearing for the 3rd respondent would submit that subsequent to the auction purchase, the revision petitioner has sold the property in favour of the 3rd respondent and the auction sale itself having been confirmed in October 2005, the sale certificate was also issued in favour of the revision petitioner in November 2005. The petitioner could not have challenged the decree in January 2006, that too, invoking Section 47 of CPC. The learned counsel for the 3rd respondent, with regard to other aspects, toed the same line of arguments that has been advanced by the learned counsel for the petitioner.

8. Per contra, Mr.N.Suresh, learned counsel appearing for the 1st respondent/judgment debtor would submit that though a decree was passed for a sum of Rs.45,000/- in 2004, the execution petition was filed seeking to bring seven items of properties for sale. He would take me through the individual items and contend that the properties, which were sought to be brought for sale in the execution petitions, were all of vast extents and very valuable properties and there was absolutely no justification for the petitioner to seek sale of these items of properties. He would further state that the 1st respondent was never served with any notice and the refusal to receive notice has also been denied in the application filed under Section 47 of CPC. He would further state that the attachment that has been effected was only under Order XXXVIII Rule 5 of CPC pending the suit and it cannot be a substitute for the attachment, which is contemplated under Order XXI Rule 54 of CPC.

9. It is the contention of the learned counsel for the 1st respondent that before bringing the properties for sale, that too, in public auction, it is a mandatory requirement to attach the properties under Order XXI Rule 54 of CPC. Pointing out to the procedure to be contemplated before bringing the property for sale in public auction, the learned counsel for the 1st respondent states that admittedly no notice has been served on the 1st respondent at any point of time. He would also point out that the notice attempted to be served on the 1st respondent through Court process was returned with an endorsement that 'the 1st respondent was not available in the said address'.

10. Pointing out to the averments in the affidavit filed in the Section 47 petition, the learned counsel for the 1st respondent would contend that the petitioner has categorically asserted that he was not living in the said property during that point of time and therefore, the endorsement of refusal by the postal department was clearly manipulated by the petitioner, in collusion with the 2nd respondent/decree holder. He would also take me through the orders passed in an application filed under Section 340 of the Criminal Procedure Code, where the Court initially dismissed the application, however, in appeal, the matter was remitted to the trial Court and again, after conducting enquiry, the trial Court has found several irregularities committed and allowed the application under Section 340 of the Cr.P.C.

11. The learned counsel for the 1st respondent would further submit that the possession, as claimed by the revision petitioner, was not taken and he would refer to the order passed in E.A.No.851 of 2005, which was only on the date, the Section 47 application was allowed, namely 08.03.2019 and contends that possession continues to be only with the 1st respondent and the claim that possession has been delivered to the auction purchaser is totally unsustainable.

12. It is also the contention of the learned counsel for the 1st respondent that it is the duty of the Court to bring only the property or portion of the property, which would be sufficient to satisfy the decree for sale in the public auction. In this regard, he would submit that there has been no application of mind and even prior to proclamation, no notice has been served on the 1st respondent and it is only after considering all these, the executing Court has held the Section 47 application to be maintainable. In support of his contention, the learned counsel for the 1st respondent would place reliance on the decision of the Hon'ble Supreme Court in Desh Bandhu Gupta Vs. N.L.Anand and Rajunder Singh, reported in (1994) 1 SCC 131, as well as Sai Enterprises Vs. Bhumreddy Laxmaiah and another, reported in (2007) 13 SCC 576.

13. I have carefully considered the submissions advanced by the learned counsel on either side.

14. The following facts are not in dispute. The 2nd respondent, as plaintiff, filed a suit for recovery of a sum of Rs.40,000/-, together with interest against the 1st respondent. An application for furnishing security was filed in I.A.No.322 of 2004, on the same date, along with the suit. On 26.06.2004, attachment before judgment was ordered in the said application filed by the 2nd respondent. Based on a memo filed by the 1st respondent that he would pay the suit amount within one year, the suit came to be decreed on 01.07.2004. The order of attachment passed in the in the ABJ proceedings was communicated to the Sub-Registrar, Virudhachalam, on 15.07.2004.

15. Though the memo of the judgment debtor as defendant was recorded, wherein he had prayed for one year time to pay the suit amount, the 2nd respondent appears to have filed an execution petition even on 02.03.2005. Notice has been ordered to the judgment debtor through Court as well as privately. The Court notice has been returned with an endorsement that 'the 1st respondent was not available at the time of service being attempted'. However, the postal notice has been returned with the endorsement 'refused'.

16. It is the contention of the learned counsel for the petitioner that when the notice has been sent admittedly to the registered address of the 1st respondent, there has to be a presumption that there has been proper service of notice and since the 1st respondent has refused to receive the same, there was no error committed by the executing Court in proceeding with the auction of sale. However, I am unable to countenance the said submission for the simple reason that when the Court notice had been sent in pursuance of the very same order of notice by the executing Court and the Court notice has been returned on the ground that the 1st respondent was not available to be served with notice, the executing Court should have been cautious to accept the postal endorsement of 'refused'.

17. Be that as it may, admittedly, there has been no effective service of notice on the 1st respondent. Even assuming that there has been refusal to receive the postal notice sent by the decree holder, that does not exempt the petitioner/decree holder from satisfying the requirements of Order XXI Rule 54 of CPC and Order XXI Rule 66 of CPC. I find force in the submissions of the learned counsel for the 1st respondent that the notice issued in the EP is not a substitute for the notice, which is a mandatory proviso to Order XXI Rule 66 of CPC. Further, the order of attachment under Order XXXVIII Rule 5 of CPC, prior to the decree, cannot be treated as compliance of the attachment required under Order XXI Rule 54 of CPC, for enabling the said property to be brought for sale in public auction.

18. The 1st respondent has alleged fraud and collusion in the Section 340 of Cr.P.C proceedings. The 1st respondent has been able to demonstrate that all has not been well and the process of bringing the property for sale is tainted with several irregularities. The trial Court has, in fact, granted permission under Section 340 of Cr.P.C to initiate proceedings for perjury. The Section 340 of Cr.P.C proceedings revolved around whether the Bailiff of the Court had caused proper proclamation in the village, as well as in the Revenue Division Office. After detailed enquiry, the Court found that the Court Bailiff had fabricated signatures and without following the procedure contemplated under the law, has interfered with the administration of justice, which has resulted in loss and prejudice to the 1st respondent.

19. In such circumstances, not only on the ground that there has been no notice, prior to the proclamation of sale, but even the process of proclamation has been found to be suspicious and also contrary to law. In such circumstances, I am unable to find any perversity in the findings arrived at by the executing Court. The question that now needs to be addressed is as to whether the application under Section 47 of CPC could have been invoked in the facts of the present case or whether the 1st respondent ought to have taken recourse to Order XXI Rule 90 of CPC.

20. Though the decisions have been relied on by the learned counsel for the revision petitioner that when allegations of irregularities in settlement of proclamation and conduct of sale are made, then, only Order XXI Rule 90 of CPC would be applicable and not Section 47 of CPC, the Hon'ble Supreme Court in Desh Bandhu Gupta's case, cited supra, has elaborately discussed the requirement of service of notice on the judgment debtor being mandatory, under not only Order XXI Rule 54(1)(a) of CPC, but also under Order XXI Rule 66(2) and held that a sale without such notice to the judgment debtor is a nullity.

21. The Hon'ble Supreme Court also went into a great detail as regards maintainability of an application under Section 47 of CPC and carving out two scenarios, the Hon'ble Supreme Court held that Section 47 of CPC permits all questions relating to execution, discharge or satisfaction of the decree to be determined by the executing Court alone and all pre-sale illegalities committed in execution are amenable to the remedy under Section 47 of CPC and it is only in the scenario where post-sale illegalities or irregularities, causing substantial injury to the judgment debtor are alleged, the judgment debtor would be required to take recourse to Order XXI Rule 90 of CPC. In the present case, I have already found that there has been not only irregularity, but also fraud committed even by the Court Bailiff in going about the process of proclamation. Mandatory notices under Order XXI Rules 54 and 66 of CPC are also not given to the judgment debtor.

22. The postal endorsement of refusal to receive notice runs contrary to the attempt of service made by the Court Officer. In such circumstances, none of the statutory provisions have been followed by the executing Court, before proceeding to auction the property. When such auction is a nullity, as held by the Hon'ble Supreme Court, no rights can be claimed by the auction purchaser and the subsequent purchaser from the auction purchaser, namely the 1st respondent. In view of the dictum of the Hon'ble Supreme Court, the decisions that have been relied on by the learned counsel for the revision petitioner, cannot be pressed into service, especially the judgments all being prior to the decision in Desh Bandhu Gupta's case.

23. In G.R.Selvaraj (Dead) through LRs case, the Hon'ble Supreme Court held that under Order XXI Rule 90(3) of CPC, there is a bar against setting aside the sale at the behest of the judgement debtor, if he failed to raise an available ground to invalidate it at the appropriate stage. On facts, the Honourable Supreme Court found that the judgement debtors were put on notice at every stage of exercise of powers by the Executing Court and in such circumstances, applied the bar under Order XXI Rule 90(3) of CPC and held that it was not open to the judgement debtor to raise a belated plea and seek setting aside of the sale held in the year 2002.

24. In M/s.Jagan Singh's case, which arose under the Land Acquisition Act. The Hon'ble Supreme Court, again referring to the bar under Order XXI Rule 90(3) of CPC, held that when the judgement debtor failed to avail of available opportunities at different stages, it would not be open to the judgement debtor to seek for setting aside of the auction sale. The ratio laid down in both these cases would not apply to the facts of the present case, when admittedly the judgement debtor had not been put on notice about which I have already discussed the respective contentions of the counsels and found that the mandate of putting the judgement debtor on notice has not been complied with in the case on hand.

25. As regards the contention of the learned counsel for the 1st respondent that under Order XXI Rule 64 of CPC, there is a duty of the executing Court to consider whether the sale of only a part of the property would be sufficient to meet the decreetal debt, here, as many as seven items of varied and large extents of property belonging to the judgment debtor, are sought to be brought for sale. The executing Court has not applied its mind with regard to the valuation. Admittedly, no notice has also been issued, as already discussed, prior to the settlement of proclamation, if which had been properly done, the judgment debtor would have had an occasion to object to the properties being brought for sale, citing the valuation of the properties. Even otherwise, I find that even though there are other items of properties are of lesser extent and of sufficient value to satisfy the decree debt, the executing Court has ordered sale of a larger extent of 2 acres 59 cents. There is no reason assigned by the executing Court for permitting sale of this property in public auction.

26. The Hon'ble Supreme Court, in Sai Enterprises's case, cited supra, has held that the executing Court has a duty to bring only such property or portion of property that would be sufficient to meet the decreetal debt and if the property is large and the decree to be satisfied is small, then the Court must bring only such portions of property, the proceeds of which would be sufficient to satisfy the claim of the decree holder, immaterial of the fact whether the property is one or several. The Hon'ble Supreme Court further held that this is the mandate of Order XXI Rule 64 of CPC and it is not discretionary but obligatory, that too, imposed upon the Court and when the sale has been held in violation of the mandate of Order XXI Rule 64, then the sale is illegal and without jurisdiction. Even the said decision would squarely apply in full force, to the facts of the present case.

27. Independently, I have gone through the order of the executing Court. The executing Court has rightly held the petition under Section 47 of CPC would be maintainable and considering the various deficiencies and irregularities committed in brining the property for sale, the executing Court has rightly allowed the Section 47 petition.

28. In fact, while doing so, as rightly contended by Mr.N.Suresh, learned counsel for the 1st respondent that the executing Court has also ensured that the rights of the auction purchaser is safeguarded. He has also brought to my notice that the direction of the executing Court to the judgment debtor to deposit the decree amount, together with interest has also been complied with and subsequently, recording the same, EP has also been terminated as early as on 20.11.2019 and the order of attachment has also been raised. The said order, recording satisfaction of the decree and raising the attachment and terminating the EP has not been challenged by the revision petitioner. The revision itself has been filed only in 2023, even though the EP has been terminated, after recording compliance made by the judgment debtor even on 20.11.2019. Therefore, the auction purchaser is also not entitled to relief on the ground of delay and laches as well and viewed from any angle, I do not find any infirmity in the order of the executing Court, allowing the Section 47 of CPC petition, warranting interference in this revision.

29. In fine, the Civil Revision Petition is dismissed. There shall be no order as to costs. Connected Civil Miscellaneous Petition is closed.