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Showing posts from May, 2021
After the application of Proviso (6) to S. 92, the adjudicating authority must be very careful when it applies provisions dealing with patent ambiguity, as it must first ascertain whether the plain language of a particular document applies accurately to existing facts
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LEGAL HEIRS CERTIFICATE - MARRIED DAUGHTER- NO ISSUES- HUSBAND IS ONLY LEGAL HEIRS- MOTHER OF DECEASED FEMALE PLACED ONLY IN THIRD POSSESSION
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THE DECREE-HOLDER IS ENTITLED TO APPROPRIATE THE AMOUNT DEPOSITED BY THE JUDGMENT DEBTOR FIRST TOWARDS INTEREST
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Production of certified copy of degree was directory not mandatory - limitation for filing EP commences from date of degree not from degree engrossed on stamp paper.
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order in order 21 rule 58 Petition - No regular appeal is contemplated as provided u/s 96 of C.P.C. But a Civil Miscellaneous Appeal alone is Maintainable.
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TENANCY AGREEMENT ENTERED DURING PENDENCY OF EXECUTION - A TRANSFEREE PENDENTE LITE CANNOT OBSTRUCT THE EXECUTION OF THE DECREE AND HE IS BOUND BY THE DECREE PASSED IN RESPECT OF THE JUDGMENT-DEBTOR.
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There was no irregularity or fraud in conducting auction sale and JD not suffered substantial injury - ground which the applicant could have taken on or before the date on which the proclamation of sale was drawn up can't raise under rule 90 - .absence or defect in the attachment of property sold, will not be a ground for setting aside sale
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Immovable property situate within the local limits of jurisdiction of two or more Court, any one of such Courts may attach and sell the entire estate or tenure. - property of judgment-debtor is available outside its jurisdiction - court can transfer the Decree the court having jurisdiction.
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Birth/Death Certificates can be applied Under RTI Act
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As per amended CPC - without consent from the degree holder, executing court cannot order to pay installment.
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limitation for instituting suit - commences from the date of default committed by him in paying one or more instalments and does not commence after expiry of the period mentioned in notice demanding.
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Executing court can go beyond the degree - - DH is not entitled to institute or maintain dual execution proceedings against principal debtor and guarantor at same time - one and the same decree amount - failure to issue section 33 notice - foreman is not entitled to recover future installment.
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STARTING POINT OF LIMITATION - LIMITATION STARTS RUNNING FROM DATE OF TERMINATION OF CHIT AGREEMENT AND NOT FROM DATE OF DEFAULT - foreman is entitled to recover future installment also.
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JD and Guarantor have been jointly and severally held liable to pay the amount - liability of a surety is co-extensive with that of the Principal debtor
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D2 HAD NO RIGHT TO SETTLE THE ENTIRE PROPERTY ON HIS WIFE, WHEN THE 1ST DEFENDANT, WHO IS A COPARCENER WAS ALREADY IN EXISTENCE. THE SETTLEMENT DEEDS DATED 09.12.1985 AND 11.12.1985 ARE INVALID
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unless the agreement is registered if executed by the judgment debtor prior to the levy of attachment then such a transfer cannot be accepted as a valid transfer in favour of such a third party purchaser unless the same is registered
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Attachment made absolute only its actual proclamation under order 21 rule 54 - property purchased before attachment is valid not affected under section 64 - rest two item of property is sufficient to satisfy the degree - one item raised.- Attachment give no right.
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EP filed against dead person who died during second appeal not nullity - impleading petition filed after 12 years not barred by limitation.
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Pendency of appeal is no bar for delivery of possession
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sale of mortgaged property in execution, the provisions of Order 21, Rule 83(1)(2) do not apply to such sale.
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An opportunity might be given to the judgment-debtor, - to negotiate for a private sale of the property to satisfy the mortgage debtat any time on or before the actual date of sale.
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If the garnishee does not rise his objection in the appropriate time - he is liable to pay the degree amount.
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Sub Registrars in the State to accept such entries to be made in the Encumbrance Certificate giving particulars of the pending proceedings in respect of immovable properties to enable a free flow of information regarding the status of property under litigation - Lis pendence purchaser can file petition to set aside the ex parte decree
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After the property was transferred in favour of the subsequent purchaser - In view of Order 21 rule 16 and Section 146 of CPC, the subsequent purchaser has indefeasible right to file execution petition without an assignment of a decree.
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EP filed for Execution of sale deed - sale deed Executed - EP closed - Second EP filed for delivery of possession after 12 years - not barred by limitation.
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There is no transfer necessary and the execution can be filed anywhere where the assets are located
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The moment the sale is held, the Judgment-debtor or the erstwhile owner losses all his right, title and interest therein and it is the purchaser that becomes the owner thereof from the date of the sale
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Purchases the property in a court auction-sale, gets title to the property by sale certificate issued by the court as true owner and after confirmation of the sale, he gets possession thereof.- he can file injunction suit against JD
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Mistake in the plot number must be treated as mere misdescription which does not affect the identity of the property sold.
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Executing court can correction of the boundaries given in the sale certificate. Thereafter it ordered the delivery of possession to the decree-holder on the basis of the amended sale certificate.
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sale deeds so executed are a nullity as having been executed in disobedience of the interim order of the Court
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Once an order was made under Order 21 Rule 92 confirming the sale - judgment debtor had no right or title in the property - issue of sale certificate is a ministerial act and not judicial.
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court refusing to issue the sale-certificate in favour of Ramamurthi who was not the latent or patent bidder but was only a subsequent transferee from the successful bidder. - it would be illegal for the Court to issue a sale-certificate in favour of the transferee.
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court refusing to issue the sale-certificate in favour of Ramamurthi who was not the latent or patent bidder but was only a subsequent transferee from the successful bidder. - it would be illegal for the Court to issue a sale-certificate in favour of the transferee.
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Auction sale of the property without reserving upset or reserved price is ex facie arbitrary, illegal and nullity
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certificates of sale are documents of title - mistake in the plot number must be treated as mere misdescription which does not affect the identity of the property sold.
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Entire property falling within the boundaries mentioned in the sale certificate has been sold
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The court setting the sale aside shall send a copy of the order to register office.
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Judges of concerned court insure - copies of sale certificates are transmitted to registering offices with promptitude.
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It is no necessary to register the copy of sale certificate as per the high court circular.
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CONFIRMATION OF SALE UNDER ORDER 21, RULE 92, C.P.C. DOES NOT REQUIRE AN APPLICATION BY THE AUCTION PURCHASER. CONFIRMATION IS A STATUTORY OBLIGATION IMPOSED ON THE COURT IF THE REQUIREMENTS OF ORDER 21, RULE 92, C.P.C. ARE SATISFIED.- IF AN APPLICATION FILED IT IS NOT SUBJECT TO LIMITATION
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Judgement debtor had a saleable interest in a very small portion of the property or Partial interest - purchaser is not entitle into to seeking setting aside the sale.
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Tax and penalty could be imposed only against the purchasing dealer and not against the seller, as per Section 3(3) of the Act
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Right of the bona fide purchaser for value is protected under Section 24A of the Tamil Nadu General Sales Tax Act
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Tax arrear - right of the bonafide purchaser for the value has to be protected.
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purchased the immovable property for valuable consideration without notice of the sales tax arrears and thus a bonafide purchaser, protected
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purchased the immovable property for valuable consideration without notice of the sales tax arrears and thus a bonafide purchaser, protected
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Bonafide purchaser cannot be imposed with the liability to pay tax
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Arrears of municipal taxes due by the transferor were not recoverable by attachment and sale of the property in the hands of the purchaser. - interest of Bonafide purchaser protected - There is no waranty of title in court auction sale
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There is no provision in the Tamil Nadu Revenue Recovery Act, 1864, which enabled the Collector to attach and sell a land not registered in the defaulter's name for arrears of revenue due
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THE SALE CONSIDERATION OF THE PROPERTY WAS IN EXCESS OF THE EXECUTION - non-compliance of the procedure required under Order XXI, Rule 64, CPC had vitiated the sale - .SALE SET ASIDE
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Executing court can go beyond the degree - decree which is a nullity can be challenged even at the execution stage.
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Executing court can go beyond the degree - Decree passed by a court without jurisdiction is a nullity - it can be challenged even at the stage of execution
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Even if the decree was passed beyond the period of limitation - executing court can't go beyond the degree and correct it - which was bound by such decree.
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Executing court can go beyond the degree under section 47 - Order passed by a court or an authority having no jurisdiction is nullity. Validity of such decree or order can be challenged at any stage, even in execution or collateral proceedings
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Trial Court to pass a decree to the extent of admitted claim and permit him to pay the same in equal monthly instalments spread over three years - maintainable.
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On receipt of the award with a certificate under Section 71 of Chit Funds Act, civil Court shall be deemed to be a Court which passed a decree and has power to issue precepts under Section 46.
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LIMITATION FOR SETTING ASIDE SALE IS 60 DAYS - Deposit made at 56 th day - sale set aside.
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REGISTRATION OF PROPERTY, WHICH IS ALREADY ATTACHED BY CIVIL COURT - VOID
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REGISTRATION OF ANY SALE DEED SUBSEQUENT TO ATTACHMENT OF PROPERTY BY COURT WOULD HAVE NO EFFECT - HE IS NOT BONAFIDE PURCHASER.
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FEMALE DIED ISSUE-LESS AND IN SUCH SITUATION, IN THE ABSENCE OF HER SON OR DAUGHTER, HER HUSBAND ALSO CANNOT INHERIT HER PROPERTY .
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Decree holder can proceed simultaneously against the guarantors and principal debtor for the same amount due under the decree,
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Simultaneous execution can proceed in two separate applications against two different judgment-debtors for the same amount due under the decree, at one and the same time
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Decree holder can divide the amount due under a decree against several persons and recover those portions from the judgment-debtors as per his choice - decree holder chose to proceed against other respondents earlier - he can subsequently file second EP for seek attachment of salary of rest of respondents,
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Non- fixation of the time of sale, as required under Order 21, Rule 69(1), CPC is a material irregularily - sale causing prejudice to the judgment-debtor - auction is liable to be set aside.
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Not specifying the hour of sale is a material irregularity likely to vitiate the sale.
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Litigation with regard to the property put up for sale is a material fact to be included in the sale proclamation under Order 21, Rule 66 -
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STEP SON CAN'T INHERIT THE PROPERTY OF DYING INTESTATE
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plaintiff not sought exemption in terms of Order 22 Rule 4(4), prior to pronouncement of judgment appeal would be abated and the decree passed by the appellate court against a dead person is nullity
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The transaction made during pendency of maintenance proceedings is hit by Section 52 of Transfer of Property Act
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Two sales were by private treaty and effected by the father after his daughter had instituted the suit for maintenance
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Court auction purchase was during the pendency of the plaintiff's suit, the sale is hit by lispendens under Section 52 of the Transfer of Property Act and it is void.
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Sale sought to be set aside on the ground of fraud in publishing as sale - an application must be made under rule 90 - not under section 47.
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CONFIRMATION OF SALE WAS NOT QUESTIONED BY PLAINTIFF – NO RELIEF COULD HAVE BEEN GRANTED AND EARLIER ORDERS HAVE ATTAINED FINALITY AND OPERATE AS BAR FOR ENTERTAINMENT OF FRESH SUIT
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Section 5 of limitation act not applicable to order 21 rule 90 petition - the limitation for filing an application to set aside sale in execution of decree is 60 days as per article 127.
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Judgement debtor not escape from his liability in respect of cost and future interest not included in proclamation of sale.
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Judgment debtor had even after making the deposit had insisted with an application under Order 21 Rule 90, the application under Order 21 Rule 89 was not maintainable
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"If a person has first applied under Rule 90 to set aside the sale, then, unless he withdraws his application, he is not entitled to make an application under Rule 89. The application even if made will be deemed to have been made only on withdrawal of the previous application. - withdrawal is complete as soon as the plaintiff intimates the Court .
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Entire amount is deposited in installments within a period of 30 days - the condition of order 21 rule 89 can be said to be complied with.
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Even there is a mistake in calculation the Court has no jurisdiction to receive the deficit amount if any after the expiry of the thirty days period prescribed under Order 21, Rule 89. C. P. C.
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One JD filed application under Order 21 Rule 90 CPC on behalf of all JD, which was pending, when another application under Order 21 Rule 89 CPC was moved by the same JD along with some other JDs - application under Order 21 Rule 89 CPC was neither ineffective nor barred under law.
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IT was sufficient if the deposit was made through an agent and the personal attendance of the judgment-debtor when depositing the money is not necessary
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IT was sufficient if the deposit was made through an agent and the personal attendance of the judgment-debtor when depositing the money is not necessary
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where there is a deposit and also an application - the absence of formal prayer for setting aside the sale does not bar the court from granting relief under this rule.
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Limitation for application for delivery of possession of immovable property which is purchased in the course of execution of a decree is one year from confirmation of sale - second application for setting aside sale is barred by res Judicata.
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properties are joint family properties and all the properties are mortgaged to the Bank and plaintiffs are entitled to partition etc.
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The starting point of limitation is the date of knowledge of the alleged fraud
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suit for cancellation of transaction whether on the ground of being void or voidable should have been filed within a period of three years from the date of the knowledge
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Third party auction purchasers's interest in the auctioned property continues to be protected notwithstanding that the underlying decree is subsequently set aside or otherwise.
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A stranger auction purchaser does not derive his title from either the decree-holder or the judgment-debtor and therefore restitution may not be granted against him
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stranger auction-purchaser is protected _ The result is that the purchaser's title relates back to the date of sale and not the confirmation of sale. - once the sale is confirmed the judgmentdebtor is not entitled to get back the property even if he succeeds thereafter.
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