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Muthusamy Udayar Vs. Pichaiammal and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai High Court
Decided On
Case NumberS.A. No. 117 of 1985
Judge
Reported inAIR1986Mad300
ActsCode of Civil Procedure (CPC), 1908 - Order 21, Rules 90 and 92
AppellantMuthusamy Udayar
RespondentPichaiammal and ors.
Advocates:S. Pichai, Adv.
Excerpt:
- - will be completely defeated......matter, i am inclined to agree with the view taken by both the courts below that the suit is not maintainable. the second appeal is accordingly dismissed.3. appeal dismissed.
Judgment:

1. The point that arises in this second appeal is as to whether after the dismissal of an application filed under O. 21 R. 90 C.P.C. to set aside a sale in, execution, the judgment-debtor could file a suit to set aside a sale. Both the courts below have held that the plaintiff whose application under O. 2 1, R. 90, C.P.C. had been dismissed cannot file a suit to challenge the validity of the court auction sale. The view taken by the courts below is challenged in this second appeal.

2. Before me, the learned counsel for the appellant contends that a suit is barred only against an order passed by the Court under O.21, R. 90 C.P.C. and that a suit to set aside a sale is not at all barred. I am not able to appreciate the distinction made by the learned counsel for the appellant between the order passed under O.21 R. 90 C.P.C. and the original order directing the sale itself. The relief sought for in the suit though couched in a language which may not fall under O.21 R. 90 C.P.C. the object of the suit is to get over the sale that had already taken place. Having regard to the object of the suit, it can be taken only as an attempt to get over an order refusing to set aside a sale under O.21 R. 90 C.P.C. If such a distinction were to be accepted as pointed out by the learned counsel for the appellant then the object of O.21 R. 92 C.P.C. will be completely defeated. The object of the said provision is to see that a finality is given to an order passed by the Court in an application filed under O. 2 1, R. 90 C.P.C. In this view of the matter, I am inclined to agree with the view taken by both the courts below that the suit is not maintainable. The second appeal is accordingly dismissed.

3. Appeal dismissed.


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