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2015 DIGILAW 1839 (MAD)

K. Rengaraju v. Sivanathan

2015-04-08

K.K.SASIDHARAN

body2015
Judgment :- 1. The first respondent filed a suit in O.S.No.830 of 2001, before the learned I Additional Subordinate Judge, Madurai, against the respondents 2 and 3, praying for a Judgment and Decree of recovery of money on the basis of a demand promissory note said to have been executed by them in his favour. The first respondent, in the suit, filed an interlocutory application in I.A.No.386 of 2001 praying for an order of attachment before Judgment. The Trial Court passed an ex parte order of attachment on 25.02.2012. The order, dated 25.02.2012, was made absolute on 15.03.2002. The property, which is the subject matter of the civil revision petition, was purchased by the petitioner by sale deed, dated 30.10.2003. The petitioner, having appraised of the fact of an ex parte order of attachment in I.A.No.386 of 2001, filed an interlocutory application in I.A.No.16 of 2006 to raise the attachment. The interlocutory application was allowed by the Trial Court, by order dated 11.12.2009. The order, dated 11.12.2009, in I.A.No.16 of 2006 was challenged by the first respondent before the learned VI Additional District Judge, Madurai, in C.M.A.No.12 of 2010. The learned 1st Appellate Judge, by Judgment and Decree, dated 09.11.2012, allowed the appeal. Feeling aggrieved by the Judgment and Decree, dated 09.11.2012, the petitioner has come up with this civil revision petition. 2. The learned counsel for the petitioner contended that the property in question belongs to the fourth respondent. The first respondent has shown the property as one belonging to respondents 2 and 3 and obtained an interim order of attachment behind his back. The petitioner is the subsequent purchaser for valuable consideration. The petitioner in view of the attachment, filed an interlocutory application in I.A.No.16 of 2006 before the Trial Court and it was rightly allowed. According to the learned counsel, the respondents 2 and 3 were not having any semblance of right in respect of the suit property and as such the learned I Additional Subordinate Judge rightly lifted the attachment. However, the order, dated 15.03.2002 in I.A.No.386 of 2001 was set aside by the learned I Additional Subordinate Judge, Madurai, solely on the ground that the sale deed was made during the currency of attachment. 3. The learned counsel for the first respondent contended that the respondents 2 and 3 are still residing along with fourth respondent. However, the order, dated 15.03.2002 in I.A.No.386 of 2001 was set aside by the learned I Additional Subordinate Judge, Madurai, solely on the ground that the sale deed was made during the currency of attachment. 3. The learned counsel for the first respondent contended that the respondents 2 and 3 are still residing along with fourth respondent. The factum of their joint residence would clearly prove that the property in dispute is a joint family property. According to the learned counsel, respondents 2 and 3 made the fourth respondent to execute the document in favour of the petitioner and thereafter filed the interlocutory application to raise attachment. The learned counsel contended that the very sale in favour of the petitioner is void ab initio. 4. The first respondent filed a suit in O.S.No.830 of 2001, before the learned I Additional Subordinate Judge, Madurai, against respondents 2 and 3. The suit was one for recovery of money on the strength of a demand promissory note said to have been executed by respondents 2 and 3. The first respondent in O.S.No.830 of 2001 filed an interlocutory application in I.A.No.386 of 2001 for attachment before Judgment. The Trial Court without ascertaining as to whether the property in question really belongs to the respondents 2 and 3, passed an order of attachment. Subsequently, the order of attachment was made absolute. The petitioner purchased the property in dispute from the fourth respondent. The property in dispute at all point of time stood in the name of fourth respondent. There is nothing on record to show that the respondents 2 and 3 are have any semblance of right in respect of the property purchased by the petitioner from fourth respondent. The order passed by the learned I Additional Subordinate Judge, Madurai, does not contain any indication that title deeds verified and only after confirmation that the property in dispute belongs to the respondents 2 and 3, attachment was made. The fourth respondent, being the rightful owner, is entitled to assign the property. There was no valid attachment against the property owned by the fourth respondent. It was only on account of the submissions made by the first respondent that the property belongs to the respondents 2 and 3, attachment was made in respect of the property, which is the subject matter of the civil revision petition. 5. There was no valid attachment against the property owned by the fourth respondent. It was only on account of the submissions made by the first respondent that the property belongs to the respondents 2 and 3, attachment was made in respect of the property, which is the subject matter of the civil revision petition. 5. The petitioner, after purchasing property from the fourth respondent, filed an interlocutory application in I.A.No.16 of 2006 to raise attachment. The learned I Additional Subordinate Judge, Madurai, found that the attachment was made in respect of the property owned by the fourth respondent. The fourth respondent was not a party to the proceedings in I.A.No.386 of 2001. Similarly, she was not a party in O.S.No.830 of 2001. The learned I Additional Subordinate Judge, Madurai, rightly lifted the attachment by order, dated 11.12.2009. 6. The learned VI Additional District Judge, Madurai, proceeded as if any transaction effected during the currency of the litigation is hit by Section 52 of the Transfer of Property Act. There is no dispute with regard to the scope and ambit of Section 52 of the Transfer of Property Act. However, the question here is as to whether the learned Trial Judge was correct in attaching the property owned by the fourth respondent in respect of a transaction involving the first respondent and respondents 2 and 3. The learned First Appellate Judge was of the view that the fourth respondent should have filed an interlocutory application to lift the attachment. The learned I Appellate Judge opined that the interlocutory application filed by the subsequent purchaser is not maintainable. The learned First Appellate Judge wanted the petitioner to file a separate suit for declaration of title. I am not inclined to accept the views expressed by the learned First Appellate Judge. The entire observation, as contained in Para 12 of the Judgment, were unnecessary for disposal of the appeal preferred against the order lifting attachment. 7. There is nothing on record to show that the property in question belongs to the respondents 2 and 3 and as such the initial attachment was rightly made. The fourth respondent, in her capacity as the original owner, assigned the property to the petitioner. This aspect was considered by the learned I Additional Subordinate Judge, Madurai, and the same resulted in lifting the attachment by order, dated 11.12.2009 in I.A.No.16 of 2006. The fourth respondent, in her capacity as the original owner, assigned the property to the petitioner. This aspect was considered by the learned I Additional Subordinate Judge, Madurai, and the same resulted in lifting the attachment by order, dated 11.12.2009 in I.A.No.16 of 2006. I am, therefore, of the view that the order impugned in this civil revision petition is liable to the set aside. 8. In the result, the Judgment and Decree, dated 09.11.2012 in C.M.A.No.12 of 2010, on the file of learned VI Additional District Judge, Madurai, is set aside. The order passed by the Trial Court is restored. 9. In the upshot, I allow the civil revision petition. No costs. Consequently, connected miscellaneous petition is closed.