Non disclosure of existence of mortgage in proclamation is material irregularity and fraud - Court alone should inform encumbrance - Judgment debtor played fraud on Court by suppressing mortgaging of property with 4th respondent/Bank - Petitioner/auction purchaser has no right to file petition under Order 21 rule 90, but to approach the Court by way of filing petition under section 47.
Citation
2017-3-L.W. 900
IN THE HIGH COURT OF JUDICATURE AT MADRAS
04.07.2017/CRP(NPD) No.4589 of 2013
M.V.Muralidaran, J.
V.Gunasekaran ...Petitioner
Vs.
R.A.N.M.Muthusamy Mudaliar Chits Funds (P) Ltd., rep. by its Director, Shanmugam 35-B, Easwaran Kovil Street,Erode-1 and others. ...Respondents
C.P.C., Sections 47,151, Order 21 rules 66,90, challenge to Auction sale
Constitution of India, Article 227/ challenge to Auction sale
Court auction sale – Challenge by auction purchaser - plea of suppression, fraud Application - Maintainability-scope of
suppression of earlier mortgage with Bank by judgment debtor- Effect of
Application to set aside under section 47 whether maintainable
held: non disclosure of existence of mortgage in proclamation is material irregularity and fraud - Court alone should inform encumbrance, should not direct auction purchaser to visit suit schedule of property Para 23
Court auction purchaser/petitioner kept in dark about rights of respondent and proceeded bonafidely by participating in public sale by depositing a large sum
Judgment debtor played fraud on Court by suppressing mortgaging of property with 4th respondent/Bank Para 27
Petitioner/auction purchaser has no right to file petition under Order 21 rule 90, but to approach the Court by way of filing petition under section 47,151 C.P.C. Para 28
As per Order 21 Rule 66 clause (c) says that any encumbrance to which the property is liable to be set aside, but in the present case in hand, the Executing Court and the judgment debtor ought to have given the particulars about the encumbrance, but both of them failed to give the encumbrance in respect of auction sale property. Thus being the case, the very first encumbrance made by the judgment debtor alone is right to proceed, but in this case, the decree holder is the 2nd
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