Civil Miscellaneous Second Appeal challenging a decree confirming an auction sale of property. The Court dismissed the appeal holding that nearly 40 years had lapsed between the sale and the appeal, making it unreasoned for intervention.
Appeal dismissed; judgment and decree confirmed. Connected miscellaneous petitions closed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 18.02.2021
CORAM
THE HON'BLE MR.JUSTICE S.M.SUBRAMANIAM
C.M.S.A.No.9 of 1998 and
C.M.P.Nos.3335 & 3336 of 1998
Chinnamani .. Appellant/Petitioner
Vs.
1. Dhanalakshmi Finance Corporation,
rep.by its Managing Partner K.Vijayakumar
S/o.K.G.Krishnasamy Chettiar
27, New Majjit Street,
Polur, Tiruvannamalai District.
2. T.Rajan Pillai
3. J.Saraswathi
4. Dr.Sureka
5. Manjula .. Respondents
Prayer : Civil Miscellaneous Second Appeal filed under Section 100 & 108 of Code of Civil Procedure against the judgment and decree on the file of the Court of the Additional District Judge, Tiruvannamalai in confirming the fair and final order dated 01.09.1992 passed in E.A.No.488 of 1981 in R.E.P.No.131 of 1979 in O.S.No.97 of 1976 on the file of the Principal District Munsif Court, Tiruvannamalai.
The judgment and decree dated 19.12.1997 passed in C.M.A.No. 36 of 1997 confirming the fair and decreetal order dated 01.09.1992 passed in E.A.No.488 of 1981 in R.E.P.No.131 of 1979 in O.S.No.97 of 1976, is under challenge in the present Civil Miscellaneous Second Appeal.
2.The substantial questions of law raised by the appellant reads as under:
“A.Whether in law the appellant is entitled to ½ share in the property sold as per the partition deed dated 12.02.1963 and the Court auction sale is liable to be set aside in so far as the appellant's ½ share when admittedly the judgment debtor's right to the property accrued only through the said partition deed?
B.Whether in law the flaw in the attachment of the property vitiates the sale and whether the court auction sale could be set aside on this ground as per the dicta laid down by this Hon'ble Court in Kamatchi Ammal vs. N.Babu and another (C.N.S.A.No 57 of 1985 dated 19.11.1997)?
C.Whether the application filed by the appellant to set aside court auction sale under Order 21 Rule 90 is barred by limitation when the appellant is a third party and entitled to half share in the property sold and when Art. 136 of the Limitation Act 1963 is applicable to the facts of the present case?”
reference to Order 38 Rule 5 C.P.C., the lower Court without giving notice to the third respondent, before the first Appellate Court, has attached the property mentioned in the schedule before the judgment. The sale held on 23.01.1980, is liable to be set aside accordingly. The first Appellate Court found that the Trial Court had issued notice to the third respondent on 22.02.1976 but attachment before judgment was made only on 03.12.1976. Thus, the Court cannot come to the conclusion that without giving notice to the third respondent, the Trial Court has effected attachment before judgment
To
Copy to: The Section Officer, V.R. Section, High Court, Madras.
+2cc to Mr.P.Mani, Advocate, S.R.No.10118 & 10022.
C.M.S.A.No.9 of 1998
KK(CO)
CSR 09.04.2021
3 issues framed by the court
Whether the appeal is maintainable given the lapse of almost 40 years from the date of the court auction sale.
Whether the limitation period bars the application to set aside the court auction sale.
Whether the appellate intervention is warranted in view of the substantial lapse of time.
Colour shows how this judgement treated each authority
Kamatchi Ammal vs. N.Babu and anotherReferred¶13
Kamatchi Ammal vs. N.Babu and another (C.N.S.A.No 57 of 1985 dated 19.11.1997)
4 provisions across 2 enactments
Chinnamani
Dhanalakshmi Finance Corporation
S.M.Subramaniam
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
