2-Acre Property Claimant Cannot Pursue Execution Challenge Alongside Suit Over Mortgage Auction, Madras HC Says

In brief

The question

1. Whether the plaintiff could pursue the suit while simultaneously prosecuting E.A. No. 2 of 2020 concerning the mortgage decree and auction sale

The court held

The civil revision petition was disposed of with the clarification that the plaintiff could withdraw E.A. No. 2 of 2020 and pursue O.S. No. 1342 of 2021, with any interim relief to be worked out in that suit.

It also directed

The Court made no order as to costs and closed the connected CMP.

01Facts

The plaintiff, K. Kanagaraj, filed O.S. No. 1342 of 2021 seeking declarations that a mortgage decree, auction-sale certificate and subsequent sale deeds concerning the suit property were void and not binding on him, together with a permanent injunction.

pp. 2–4, 6–7

C. Sivaraj, the ninth defendant, applied under Order VII Rule 11 CPC to reject the plaint, arguing that the plaintiff was already challenging the mortgage decree and auction sale in E.A. No. 2 of 2020 under Section 47 read with Order XXI Rule 90 CPC, and that the suit was barred, including by Order XXI Rule 103 CPC.

pp. 2–4, 6–7

The trial court dismissed the application, finding that the plaint disclosed a cause of action and that the issues required trial.

p. 5

Sivaraj challenged that order; the revision under Article 227 was converted into one under Section 115 CPC.

p. 5

02Issues

i.1. Whether the plaintiff could pursue the suit while simultaneously prosecuting E.A. No. 2 of 2020 concerning the mortgage decree and auction sale

pp. 6–8

ii.2. Whether the plaint should be rejected under Order VII Rule 11 CPC on the ground that the suit was barred by law, including under Order XXI Rule 103 CPC

pp. 4, 6–7

03Law Applied

The Court considered Order VII Rule 11 CPC, which provides for rejection of a plaint on specified grounds, including where the suit appears from the plaint to be barred by law.

pp. 4–7

It also considered Section 47 and Order XXI Rule 90 CPC, under which the plaintiff had brought the pending execution application, and the petitioner’s reliance on Order XXI Rule 103 CPC.

pp. 4–7

The revision was heard under Section 115 CPC after conversion from a petition under Article 227 of the Constitution.

pp. 4–7

Provisions in the judgment · 2 · Linked ones open on LawLens

Code of Civil Procedure, 1908 Section 47 Section 115

04Reasoning

The Court noted that the plaintiff’s suit challenged the proceedings from the mortgage decree through the sale deed in favour of the ninth defendant, while E.A. No. 2 of 2020 also challenged the decree and auction sale.

pp. 6–7

It concluded that the plaintiff could not prosecute both proceedings in parallel and stated that he could withdraw the execution application and pursue his rights in the suit.

p. 8

If he did so, the ground raised in the Order VII Rule 11 application would lose significance; any interim protection could be sought in the suit.

p. 8

The Court therefore did not decide the asserted Order XXI Rule 103 bar on its merits.

p. 8