Dhoraisami, Erode District v. L. Kannammal, Erode District & Another
2007-03-15
R.BANUMATHI
body2007
DigiLaw.ai
Judgment :- Challenging the order dated 27.06.2006 passed by District Munsif, Gobichettipalayam in E.A.No.181 of 2005, allowing Application under O.13 R.10 C.P.C, Plaintiff in O.S.No.129 of 1998 has preferred this Revision. 2. Relevant facts for disposal of this Revision are as follows:-Petitioner / Plaintiff has filed O.S.No.129 of 1998 on the file of Sub-Court, Gobichettipalayam against the Second Respondent for recovery of a sum of Rs.35,000/-based on Promissory Note dated 02.07.1996. The said suit was decreed exparte. In the said Suit, in I.A.No.310 of 1998, Attachment Before Judgment was ordered. To recover the suit amount, the Petitioner / Plaintiff has filed Execution Petition before Sub-Court, Gobichettipalayam and the same was transferred to DMC, Gobichettipalayam. 3. First Respondent has purchased the property from Judgment Debtor / Second Respondent by the Sale Deed dated 15.07.1998 for a consideration of Rs.1,12,000/-. The Sale in favour of First respondent was prior to Attachment Before Judgment. Claiming that she is bonafide Purchaser for value and for raising Attachment Before Judgment, the First Respondent has filed Claim Petition in E.A.No.423 of 2001 under O.21 R.58 C.P.C. That Claim Petition was transferred to DMC, Gobichettipalayam and re-numbered as E.A.No.210 of 2004. In the Claim Petition, First Respondent has filed E.A.No.181 of 2005 to send for Original Documents and Court Records from the Records of Sub-Court, Gobichettipalayam in O.S.No.129 of 1998 and the same was allowed by Execution Court, which is challenged in this Revision. 4. Challenging the Impugned Order, learned counsel for the Petitioner has submitted that in execution stage, Original Records in the Suit cannot be called. It was further contended that in Claim Petition only point for determination is whether First Respondent is bonafide Purchaser or not and while so, genuineness of Original Promissory Note cannot be gone into. 5. Submitting that sale in favour of First Respondent is prior to ABJ in I.A.No.310 of 1998, learned counsel for First Respondent has submitted that the summoned documents are very much relevant to substantiate the claim of the First Respondent. Admittedly, First Respondent has purchased the property from Second Respondent for a consideration of Rs.1,12,000/-and the sale is stated to be prior to ABJ.
Admittedly, First Respondent has purchased the property from Second Respondent for a consideration of Rs.1,12,000/-and the sale is stated to be prior to ABJ. To substantiate her contention in the Claim Petition, the First Respondent has called for (i) Suit Promissory Note in O.S.No.129 of 1998; (ii) Affidavit, Petition and Order and other relevant documents in I.A.No.310 of 1998; and (iii) Affidavit, Petition and Order and other relevant documents in I.A.No.472 of 1998. Learned counsel for the First Respondent has submitted that there is material evidence to be produced from the Records in the said Interlocutory Applications regarding Attachment Before Judgment. 6. Learned counsel for Revision Petitioner has contended that the First Respondent / Claimant having failed to establish that she was the bonafide Purchaser for value without notice, cannot file a Petition to send for the Suit documents and adduce evidence on those documents. In a Claim Petition filed under O.21 R.58 C.P.C, all questions arising between the parties to the proceeding and relevant to the adjudication of the claim or objection shall be determined by the Court in dealing with the claim or objection and not by a separate suit. When all questions arising between parties is to be determined by the Execution Court and not by a separate suit, sufficient opportunity is to be afforded to the Claimant for adducing evidence. No doubt, in a claim Petition to raise an Attachment, the genuineness of the Debt / Promissory Note for which the Decree has already been passed cannot be investigated. However, it is open to the Claimant to adduce necessary evidence on the Promissory Note. Though Promissory Note has been summoned, the Execution Court need not investigate as to whether Debt is genuine or not. 7. Any claim to property attached before Judgment should be enquired under O.21 R.58 C.P.C. For such Investigation and Enquiry, Petition, Affidavit and Orders in the earlier Application I.A.Nos.310 and 472 of 1998 are necessary. The order summoning the documents from Sub-Court, Gobichettipalayam cannot be said to be vitiated by illegality or material irregularity calling for interference exercising revisional jurisdiction. 8. The Impugned Order dated 27.06.2006 of District Munsif, Gobichettipalayam in E.A.No.181 of 2005 in E.P.No.97 of 2004 in O.S.No.129 of 1998 is confirmed and this Civil Revision Petition is dismissed. No costs. Interim Stay already granted on 19.09.2006 in M.P.No.1 of 2006 is vacated and the Petition is dismissed.
8. The Impugned Order dated 27.06.2006 of District Munsif, Gobichettipalayam in E.A.No.181 of 2005 in E.P.No.97 of 2004 in O.S.No.129 of 1998 is confirmed and this Civil Revision Petition is dismissed. No costs. Interim Stay already granted on 19.09.2006 in M.P.No.1 of 2006 is vacated and the Petition is dismissed. Consequently, V.C.M.P.No.1 of 2007 is allowed.