Property that was attached before Judgment, sold in execution of Decree - sale is sought to be set aside on ground of material irregularity in publishing and conducting it, Section 47 cannot come into play at all and could be set aside only by invoking Order 21, Rule 90 - Judgment debtor was not having any subsisting right over property and thus, no locus standi to file said Application - Court rightly dismiss the petition.

Citation

2017 (1) MWN (Civil) 372 (Mad)

IN THE HIGH COURT OF MADRAS

R. Mala, J. C.R.P. (NPD) No. 1097 of 2016 & C.M.P. No.6044 of 2016.

February 10, 2017

K.M. Balasubramanian, S/o. Mosuvanna Gounder

...Petitioner

Vs. 

 

C. Loganathan, S/o. Chinnappa Gounder.; N.G. Deivasigamani, S/o. N.S. Gurusamy Gounder

...Respondent

CODE OF CIVIL PROCEDURE, 1908 (5 of 1908), Section 47, Order 21, Rule 90- LIMITATION ACT, 1963 (36 of 1963), Article 127- Money Suit Ex parte Decree Property that was attached before Judgment, sold in execution of Decree - Ex parte Decree became final Judgment-debtor invoking provisions of Section 47 to set aside on grounds that there was no proper publication in conducting and that Decree was inexecutable Judgment-debtor sold property to Third party, when Order of Attachment was in force - In turn, Third party sold property to Wife of Judgment-debtor's Advocate In his oral evidence, Judgment debtor categorically admitted that he was aware of sale within one month from date of auction If is sought to be set aside on ground of material irregularity in publishing and conducting it, Section 47 cannot come into play at all and could be set aside only by invoking Order 21, Rule 90- Challenge has to be made within 60 days Instead of filing Application under Order 21, Rule 90, Judgment-debtor filed Application under Section 47, after period of 1½ years Application filed under Section 47 cannot be maintained - Further on date of filing of Application, Judgment debtor was not having any subsisting right over property and thus, no locus standi to file said Application Executing Court rightly dismissed Application Civil Revision Petition dismissed. [Para 14,