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Judgment
A. Selvam, J.—This Civil Revision Petition has been directed against the order dated 14.08.2003 passed in Civil Miscellaneous Appeal No. 1 of 2000 by the Principal Sub Court, Madurai.
The second respondent herein as plaintiff has instituted Original Suit No. 612 of 1989 on the file of the Additional District Munsif Court, Madurai Town against one Sikkandar, wherein an executable decree has been passed and the same has been put into execution in Execution Petition No. 565 of 1996. In Execution Petition No. 565 of 1996, the property of the Judgment debtor has been brought for sale and in the Court auction the present revision petitioner has purchased the property. During pendency of Execution Petition No. 565 of 1996, the first respondent herein as petitioner has filed Execution Application No. 309 of 1999 on the file of the Executing Court under Order 21, Rule 89 of the Code of Civil Procedure, 1908 by way of depositing the sale amount, wherein it is stated that the petitioner is having right in the property which has been sold in Court auction and under the said circumstances the entire Court sale is nothing, but void.
On the side of the contesting respondents, counter has been filed.
The Executing Court after considering the available evidence on record has dismissed Execution Application No. 309 of 1999. Against the order passed by the Executing Court, the petitioner therein as appellant has filed Civil Miscellaneous Appeal No. 1 of 2000 on the file of the first appellate Court.
The first appellate Court after hearing both sides, has allowed Civil Miscellaneous Appeal No. 1 of 2000 and thereby set aside the order passed by the Executing Court in Execution Application No. 309 of 1999 and ultimately allowed the same. Against the order passed by the first appellate Court, the present Civil Revision Petition has been filed at the instance of the auction purchaser as revision petitioner.
The learned counsel appearing for the revision petitioner has succinctly contended that during pendency of Execution Petition No. 565 of 1996, the first respondent/petitioner has filed Execution Application No. 790 of 1997 on the basis of a partition deed alleged to have been entered into in between him and his father and the same has been dismissed by the Executing Court and subsequently filed the present Execution Application No. 309 of 1999 and the Executing Court has rightly dismissed the same, but the first appellate Court without considering the nature of the right claimed by the first respondent/petitioner has erroneously allowed Civil Miscellaneous Appeal No. 1 of 2000 and therefore the order passed by the first appellate Court is liable to be set aside.
Per contra, the learned counsel appearing for the first respondent/petitioner has repeatedly contended that even though Execution Application No. 790 of 1997 has been dismissed, both the first respondent/petitioner and Judgment debtor have lived together in the property in question and in fact the Judgment debtor has intended to give the same to the petitioner/first respondent and under the said circumstances the present petition has been filed in Execution Application No. 309 of 1999 and the Executing Court has erroneously dismissed the same, but the first appellate Court has rightly allowed the same and therefore the order passed by the first appellate Court does not require any interference.
Basing upon the divergent submissions made on either side, the Court can easily deduce the following admitted facts.
It is an admitted fact that the second respondent herein as plaintiff has instituted Original Suit No. 612 of 1989 on the file of the trial Court, wherein the father of the first respondent by name Sikkandar has been shown as sole defendant. In Original Suit No. 612 of 1989, an executable decree has been passed and the same has been put into execution in Execution Petition No. 565 of 1996. During pendency of the same, the first respondent/petitioner has filed a petition in Execution Application No. 790 of 1997 on the basis of a partition deed alleged to have been entered into in between him and his father and the same has been dismissed. After the dismissal of Execution Application No. 790 of 1997, the present application has been filed under Order 21, Rule 89 of the Code of Civil Procedure, 1908 by way of depositing the sale amount.
The main contention putforth on the side of the revision petitioner is that the property involved in Execution Petition No. 565 of 1996 is the absolute property of Judgment debtor and under the said circumstances the Executing Court has brought the same for sale, wherein the present revision petitioner has purchased it.
The contention putforth on the side of the first respondent/petitioner is that his father during his lifetime, has intended to give the property in question to him. The mere intention is not at all sufficient for coming to a conclusion that the first respondent/petitioner is having tangible interest over the property in question.
It is a settled principle of law that Order 21, Rule 89 of the Code of Civil Procedure, 1908 can be invoked by a person, who is having interest in the property involved in execution. In the instant case as pointed out earlier, the first respondent/petitioner has filed the present petition purely on surmise without any indenture. Considering the aspect that the first respondent/ petitioner is not having any tangible interest over the property involved in Execution Petition No. 565 of 1996, even though he deposited the sale amount into Court, the relief sought for in the petition cannot be granted.
The Executing Court has rightly dismissed the petition. But the first appellate Court even without knowing the nature of right claimed by the first respondent/petitioner has erroneously allowed Execution Application No. 309 of 1999. Therefore viewing from any angle, the order passed by the first appellate Court is not factually and legally sustainable and the same is liable to be set aside.
In fine, this Civil Revision Petition is allowed without costs and the order passed in Civil Miscellaneous Appeal No. 1 of 2000 by the Principal Sub Court, Madurai is set aside and the order passed in Execution Application No. 309 of 1999 in Execution Petition No. 565 of 1996 in Original Suit No. 612 of 1989 by the Additional District Munsif Court, Madurai Town is restored. Consequently, connected Miscellaneous Petitions are closed.