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2015 DIGILAW 2220 (MAD)

Thangaraj v. Maragatham

2015-06-11

P.R.SHIVAKUMAR

body2015
JUDGMENT P.R. Shivakumar, J. 1. The Second Appeal stands listed today for admission. The second respondent alone is represented by a counsel. The first respondent is no more and the second respondent has been recorded as legal representative of the first respondent also. The respondents 3 and 4 were not the contesting parties in the Execution Application and in fact, the respondents 1 and 2 claimed derivation of title through respondents 3 and 4. In the first Appellate Court, notice to the respondents 3 and 4 herein was dispensed with. Hence, in the Second Appeal also notice to the respondents 3 and 4 is dispensed with. The arguments advanced by Mr. K. Elangovan, learned counsel for the appellant in the Second Appeal and by Mr. M. Saravanan, learned counsel for the second respondent in the Second Appeal are heard. Copies of the Judgments of the Courts below and copies of the other records produced in the form of typed-set of papers are also perused and taken into consideration. 2. The brief narration of facts leading to the filing of the Second Appeal will help us understanding the case and the issues involved in the case. "(i) The appellant-Thangaraj filed a suit in Original Suit No. 91 of 1998 on the file of the Sub Court, Palani against Gothandapani and Thillai Selvan-the respondents 3 and 4 herein for recovery of money. Pending disposal of the suit, he filed an Interlocutory Application in I.A. No. 147 of 1998 under Order 38 Rule 5 of the Code of Civil Procedure, 1908 for attachment before Judgment. He got an order as prayed for and the said property came to be attached before Judgment by virtue of the said order of the trial Court. The said suit resulted in a decree granted in favour of the appellant herein, who was the plaintiff in the said suit, for recovery of a sum of Rs. 1,22,370/- with subsequent interest on the principal amount at 12% p.a. from the date of plaint till realization and cost. The decree came to be passed on 27.10.1999. Thereafter, the appellant herein/decree holder filed an earlier Execution Petition as E.P. No. 15 of 2000 for arrest of the Judgment Debtor. The said Execution Petition came to be dismissed on the decree holder's failure to pay batta and such order of dismissal came to be made on 16.07.2002. The decree came to be passed on 27.10.1999. Thereafter, the appellant herein/decree holder filed an earlier Execution Petition as E.P. No. 15 of 2000 for arrest of the Judgment Debtor. The said Execution Petition came to be dismissed on the decree holder's failure to pay batta and such order of dismissal came to be made on 16.07.2002. Again the appellant/decree holder filed another Execution Petition in E.P. No. 307 of 2003 for recovery of the decreetal amount by attachment and sale of the property described in the schedule to the said Execution Petition. The second Execution Petition, namely E.P. No. 307 of 2003 was also dismissed on 27.08.2004 on the failure of the decree holder to pay batta. Thereafter, a third Execution Petition came to be filed as E.P. No. 86 of 2005 for the sale of the property described in the schedule thereto, without seeking attachment contending that the said property had been attached before Judgment and that the attachment continued despite the orders of dismissal of the earlier Execution Petitions containing no direction for continuance of the attachment effected before Judgment. Meanwhile, the Judgment Debtors, namely respondents 3 and 4 conveyed the property to the respondents 1 and 2 under a registered sale deed dated 21.01.2004. After such sale, the Executing Court passed an order on 04.04.2006 in E.P. No. 86 of 2005 for attachment of the above said property and admittedly, the attachment was effected. Hence, the respondents 1 and 2, who had purchased the property preferred a claim petition in E.A. No. 626 of 2008 under Order 21 Rule 58 of the Code of Civil Procedure, 1908 praying for an order raising the Judgment and setting aside the order of attachment. (ii) The said application was resisted by the appellant herein/decree holder contending that the property had been attached during the pendency of the suit itself by an order of attachment before Judgment passed in I.A. No. 147 of 1998 on 24.08.1998 and that respondents 1 and 2, having purchased the property subsequent to such attachment, which was in force even after the passing of a decree in favour of the decree holder in the above said suit, could not seek the raising of attachment. Though the appellant herein/decree holder had not disputed the fact that in E.P. No. 86 of 2005 a re-attachment was made by the impugned order dated 04.04.2006, it was the contention of the appellant herein/decree holder before the Executing Court that the said attachment was superfluous and the attachment before Judgment was effective and the same continued despite the fact that the earlier Execution Petitions came to be dismissed without passing specific order as to whether attachment was raised or if not raised, how far and upto what time the attachment would continue. (iii) Relying on Order 21 Rule 57 of the Code of Civil Procedure, 1908 the respondents 1 and 2 contended that as soon as the earlier Execution Petitions came to be dismissed without any observation or direction as to whether the attachment would continue or not and if the attachment would continue, up to what time such attachment would continue, the attachment ceased on the date on the order of dismissal of the earlier Execution Petition and that the respondents 1 and 2, having purchased the property when there was no attachment in force, could very well resist re-attachment of the property. (iv) Rule 57 of Order 21 of the Code of Civil Procedure, 1908 reads as follows:-- "57. Determination of attachment:-- (1) Where any property has been attached in execution of a decree and the Court, for any reason, passes an order dismissing the application for the execution of the decree, the Court shall direct whether the attachment shall continue or cease and shall also indicate the period up to which such attachment shall continue or the date on which such attachment shall cease. (2) If the Court omits to give such direction, the attachment shall be deemed to have ceased." (v) In view of the admitted fact that the earliest Execution Petition, namely E.P. No. 15 of 2000 was dismissed without any direction as to the continuance of the attachment or the period upto which the attachment would continue, the respondents 1 and 2 had contended that the attachment made before Judgment had ceased from the date of dismissal of the said Execution Petition, namely 18.07.2002. Their contention was also fortified by the fact that the second Execution Petition, namely E.P. No. 307 of 2003 came to be filed for attachment of the property and sale and the said Execution Petition was also dismissed without effecting any attachment due to the failure on the part of the decree holder to pay batta for attachment. Under the said circumstances alone, the respondents 1 and 2 herein took the plea that there was no attachment in force as on the date of their purchase and that hence, they were very much entitled to seek the cancellation of the order of attachment passed in E.P. No. 86 of 2005. (vi) Relying on Order 38 Rule 11 of the Code of Civil Procedure, 1908 which states that a property attached before Judgment need not be re-attached upon an application for execution of the decree passed in such a suit in which the property was attached before Judgment, the decree holder contended that the attachment before Judgment would continue to be in force despite the fact that the Execution Petitions filed were dismissed without a direction as to the continuance of the attachment and that the attachment before Judgment would be in force till the attachment is raised by a specific order or till full satisfaction is recorded. (vii) The learned Judge of the Executing Court accepted the above said contention of the appellant herein/decree holder and expressed a view that Rules under Order 21 of the Code of Civil Procedure, 1908 regarding attachment stand excluded by Order 38 Rule 11 of the Code of Civil Procedure, 1908 in respect of attachment before Judgment. The learned Judge of the Executing Court also held that the right of the respondents 1 and 2 (the purchasers) shall be subject to the attachment, as they purchased the property knowing fully well that a decree had been obtained against their vendors and the same was not satisfied. (viii) Aggrieved by the said order of the Executing Court dated 16.12.2009, the respondents 1 and 2 preferred an appeal in A.S. No. 10 of 2010 before the lower Appellate Court (Additional District Court, Fast Track Court, Dindigul). (viii) Aggrieved by the said order of the Executing Court dated 16.12.2009, the respondents 1 and 2 preferred an appeal in A.S. No. 10 of 2010 before the lower Appellate Court (Additional District Court, Fast Track Court, Dindigul). The learned lower Appellate Judge, upon hearing both sides and on re-consideration of the materials available on record, set aside the order of the Executing Court and granted the relief sought for in E.A. No. 626 of 2008 filed by the respondents 1 and 2 herein, by a Judgment and Decree dated 27.02.2012. It is as against the said decree of the lower Appellate Court, the present Second Appeal came to be filed by the appellant herein, who is the decree holder in O.S. No. 91 of 1998." 3. The contention of the learned counsel for the appellant is two fold. 4. The first part of his contention is as follows:-- "An attachment before Judgment under Order 38 Rule 5 of the Code of Civil Procedure, 1908 is on a different footing than an attachment made in execution under Order 21 of the Code of Civil Procedure, 1908. The same will be obvious from the fact that Order 38 Rule 11 of the Code of Civil Procedure, 1908 makes it unnecessary to re-attach the property upon an application for execution of a decree being filed. As it is not necessary that the property attached before Judgment should be re-attached in execution, the said Rule totally excludes the provisions relating to attachment found in Order 21 of the Code of Civil Procedure, 1908." 5. The above said contention of the learned counsel for the appellant has been made on the assumption that the attachment of a property before Judgment, when made absolute followed by a decree in favour of the party in whose favour such attachment was made, will continue till the execution of the decree is barred by limitation, without there being any necessity to pass a specific order regarding its continuance or termination as and when Execution Petitions are disposed of. The above said contention seems to have been made either in suppression or in ignorance of Rule 11A under Order 38 of the Code of Civil Procedure, 1908. 6. Rule 11A of Order 38 of the Code of Civil Procedure, 1908 reads as follows:-- "11A. The above said contention seems to have been made either in suppression or in ignorance of Rule 11A under Order 38 of the Code of Civil Procedure, 1908. 6. Rule 11A of Order 38 of the Code of Civil Procedure, 1908 reads as follows:-- "11A. Provisions applicable to attachment:-- (1) The provisions of this Code applicable to an attachment made in execution of a decree shall, so far as may be, apply to an attachment made before Judgment which continues after the Judgment by virtue of the provisions of Rule 11. (2) An attachment made before Judgment in a suit which is dismissed for default shall not become revived merely by reason of the fact that the order for the dismissal of the suit for default has been set aside and the suit has been restored." 7. A proper construction of Rule 11A under Order 38 of the Code of Civil Procedure, 1908 will give a clear picture that when a property has been attached before Judgment it shall not be necessary to re-attach the same, when an application for execution is filed and on presentation of such application for execution, the attachment before Judgment shall stand converted into an attachment made in execution of the decree and thereby attracting the other provisions under Order 21 of the Code of Civil Procedure, 1908 relating to the termination of attachment. 8. Order 21 Rule 57 of the Code of Civil Procedure, 1908 deals with the determination of Judgment it reads as follows:-- "57. Determination of attachment:---(1) Where any property has been attached in execution of a decree and the Court, for any reason, passes an order dismissing the application for the execution of the decree, the Court shall direct whether the attachment shall continue or cease and shall also indicate the period up to which such attachment shall continue or the date on which such attachment shall cease. (2) If the Court omits to give such direction, the attachment shall be deemed to have ceased." 9. Order 21 Rule 57 of the Code of Civil Procedure, 1908 is the only provision dealing with the determination of attachment on disposal of an Execution Petition. There is conspicuous absence of corresponding rule regarding determination of attachment before Judgment in the Rules found under Order 38 of the Code of the Civil Procedure, 1908. Order 21 Rule 57 of the Code of Civil Procedure, 1908 is the only provision dealing with the determination of attachment on disposal of an Execution Petition. There is conspicuous absence of corresponding rule regarding determination of attachment before Judgment in the Rules found under Order 38 of the Code of the Civil Procedure, 1908. A conjoint reading of Order 38 Rule 11 and 11A of the Code of Civil Procedure, 1908 will make the position clear that, though a property attached before Judgment need not be re-attached on the filing of the first application for execution, by virtue of Rule 11A under Order 38 of the Code of Civil Procedure, 1908, the attachment becomes an attachment in Execution one such an application for execution is filed and thereby it will attract the provision found in Order 21 Rule 57 of the Code of Civil Procedure, 1908. 10. In the case on hand, it seems, the appellant was also aware of this position. That is the reason why he chose to file the second Execution Petition seeking attachment of the property after the dismissal of the first Execution Petition. In the second Execution Petition also he suffered an order of dismissal on his failure to pay batta for attachment. Hence, it is quite clear that the attachment was not subsisting as on the date of purchase of the property by the respondents 1 and 2. 11. The second part of the contention of the learned counsel for the appellant is to the effect that since the purchasers, namely respondents 1 and 2, knew the pendency of the second Execution Petition (E.P. No. 307 of 2003), their purchase was hit by the principle of lis pendens and that the purchase was subject to the result of the lis, namely the Execution Petition. Suppose the property had been attached in the said Execution Petition, the contention of the learned counsel for the appellant shall have some substance in it. Unfortunately there was no such order of attachment and the appellant also suffered an order of dismissal of the Execution Petition on his failure to pay batta for effecting attachment. Hence, the principle of lis pendens cannot be attracted. Even otherwise an attachment of property shall not have the effect of preventing the owner of the property from selling and the purchaser of the property from purchasing the same. Hence, the principle of lis pendens cannot be attracted. Even otherwise an attachment of property shall not have the effect of preventing the owner of the property from selling and the purchaser of the property from purchasing the same. The existence of attachment will not ipso facto nullify the alienation. On the other hand, such alienation shall be subject to the attachment, namely the property being liable to be brought for sale for realisation of the decree amount. 12. Yet another contention was also sought to be made on behalf of the appellant to the effect that the respondents 1 and 2 had not purchased the property, but what they purchased was only litigation and that the sale transaction itself would be a fraudulent transaction in order to defeat the right of the creditor, namely the decree holder. If at all the sale deed is sought to be attacked as a fraudulent transfer, the appellant ought to have taken steps under Section 53 of the Transfer of Property Act, 1882 to avoid the transaction within the time prescribed by the statute relating to limitation. The appellant has not chosen to do so. Hence, the contention that the claim of the respondents 1 and 2 should not be accepted on the premise that they were not bonafide purchasers also is bound to fail. 13. This Court does not find any mistake or defect in the Judgment of the lower Appellate court and this Court is not able to find any reason to interfere with the Judgment and Decree of the lower Appellate Court. The only question that could be projected as a substantial question of law, namely "whether by virtue of Order 38 Rule 11 of the Code of Civil Procedure, 1908 the application of order 21 Rule 57 of the Code of Civil Procedure, 1908 stands excluded towards an attachment before Judgment?", has been answered by this Court holding that such a claim of exclusion cannot be countenanced. No other substantial question of law is shown to have involved in this Second Appeal. None of the findings of the lower Appellate court is shown to be perverse warranting interference holding that the perversity of a finding on fact will elevate the question to the level of a substantial question of law. 14. No other substantial question of law is shown to have involved in this Second Appeal. None of the findings of the lower Appellate court is shown to be perverse warranting interference holding that the perversity of a finding on fact will elevate the question to the level of a substantial question of law. 14. For all the reasons stated above, this Court herein holds that there is no merit in the Second Appeal and the same deserves to be dismissed. In the result, the Second Appeal fails and accordingly, the same is dismissed. However, there shall be no order as to costs. Consequently, connected Miscellaneous Petition is also dismissed.