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2019 DIGILAW 3146 (MAD)

T. Kumaresan v. Stellabai

2019-11-14

J.NISHA BANU

body2019
JUDGMENT : J. NISHA BANU, J. Prayer: Appeal filed under Order 21 Rule 58(4) r/w Section 100 of C.P.C. against the judgment and decree dated 18.08.2017 passed in C.M.A. No. 28 of 2016 by the District Court, Kanyakumari District at Nagercoil, reversing the fair and decreetal order dated 21.06.2016 passed in E.A. No. 73 of 2015 in E.P. No. 65 of 2008 in O.S. No. 41 of 2005 by the Subordinate Court, Padmanabhapuram. 1. This appeal has been filed by the appellant against the judgment and decree dated 18.08.2017 passed in C.M.A. No. 28 of 2016 by the District Court, Kanyakumari District at Nagercoil, whereby and whereunder the Court below has reversed the finding of the trial Court in E.A. No. 73 of 2015 in E.P. No. 65 of 2008 in O.S. No. 41 of 2005 based on the joint Compromise memo and allowed E.A. No. 73 of 2015 filed for raising attachment of 2nd item of property and directed to issue intimation with regard to raising of attachment of item No. 2 of the property to the Registration Department and further directed to register the Document No. 25 of 2006 alleged to have been executed between the appellant herein and the 3rd respondent herein in respect of the 2nd item of property as per law. 2. The first respondent herein as plaintiff has filed the suit in O.S. No. 41 of 2005 for recovery of Rs. 1,35,000/- with future interest against one T. Murugesan/original defendant, who is the husband of the 2nd respondent herein. During the pendency of the trial, two items of properties of the original defendant were attached before judgment in I.A. No. 144 of 2005 on 12.08.2005 at the instance of the first respondent/plaintiff. The suit was decreed as prayed for on 12.06.2006. The first respondent/plaintiff/decree holder filed execution petition in E.P. No. 65 of 2008 for recovery of the decree amount by bringing the attached properties for sale. While so, the appellant herein/3rd party filed E.A. No. 79 of 2012 stating that the original defendant/judgment debtor has sold the 2nd item of the property to him much before the attachment before judgment on 06.08.2004 and he, in turn, executed a sale-deed in favour of the 3rd respondent herein, but the same has been returned in view of the order of attachment and therefore, the attachment of the 2nd item of property may be raised. But, the said application was dismissed for default on 12.12.2014. Subsequently, the 3rd respondent herein filed E.A. No. 73 of 2015 stating that he is the purchaser of entire second schedule from the appellant herein on 15.03.2006 for a total sale consideration of Rs. 60,984/- and due to attachment order, the Sub Registrar, Eraniel, returned the document No. 25 of 2006 and as he has paid valid sale consideration and he is interested in the 2nd item of property, he sought to raise the 2nd item of property from attachment. During the pendency of the said petition, the original defendant died and hence, the present 2nd respondent was bring on record as the sole legal heir. 3. The trial Court has dismissed E.A. No. 73 of 2015 holding that though the sale-deed was returned on 15.03.2006, the petitioner/third respondent has belatedly filed this petition and the petition was not filed with good intention. Aggrieved by the same, the 3rd respondent herein filed C.M.A. No. 28 of 2016. Before the first appellate Court, the first respondent herein/plaintiff and the third respondent herein filed a joint compromise memo and based on the same, the first appellate Court has set aside the order passed by the trial Court in E.A. No. 73 of 2015 and directed to issue intimation with regard to raising of attachment of 2nd item of the property to the Registration Department and further directed to register the Document No. 25 of 2006 alleged to have been executed between the appellant and the 3rd respondent herein in respect of the 2nd item of property as per law. Aggrieved by the last portion of the order passed by the first appellate Court to the effect that “the pending sale-deed in favour of the 3rd respondent/appellant i.e. Document No. 25/2006 of Sub Registrar's Office, Eraniel is to be registered as per law” the appellant has filed this second appeal. 4. The learned counsel appearing for the appellant submitted that the appellant has purchased the 2nd item of property measuring 7 cents in R.S. No. 584/24 of Kurunthancode Village even before attachment order, thereby he became owner of 20 cents land in the said survey number. The 3rd respondent herein is not the bona fide purchaser. 4. The learned counsel appearing for the appellant submitted that the appellant has purchased the 2nd item of property measuring 7 cents in R.S. No. 584/24 of Kurunthancode Village even before attachment order, thereby he became owner of 20 cents land in the said survey number. The 3rd respondent herein is not the bona fide purchaser. In order to over ride the attachment order, at the ill-advise of the 3rd respondent, he has executed a sham sale-deed dated 15.03.2006 in favour of the 3rd respondent without receipt of sale consideration, in respect of the entire 20 cents of land. Though in the sale-deed it is stated that the entire sale consideration has been paid only on 15.03.2006, the 3rd respondent herein created a forged agreement as if a sum of Rs. 30,000/- was retained out of the sale consideration. The brother of the 3rd respondent herein, who is an advocate by profession, has filed E.A. No. 79 of 2012 and subsequently, he left the matter for non prosecution at the ill-advice of the 3rd respondent herein. Any how, there is no conflict interest between the appellant and the 3rd respondent herein in respect of raising attachment of the 2nd schedule property. The appellant has grievance only regarding a specific direction to Sub Registrar, Eraniel to register document No. 25 of 2006 in favour of the 3rd respondent herein and to release the same. 4.1. The learned counsel for the appellant would further submit that under Order 21 Rule 58 C.P.C. the execution Court can either allow or disallow the claim petition and may release the property from attachment or pass orders to continue such attachment and there cannot be any further orders for registration to Sub Registrar who is not a party to the execution petition. Hence, the last portion of the judgment passed by the first appellate Court directing the Sub Registrar to register the document is per se illegal and liable to be set aside. He would further submit that the 3rd respondent herein filed an application under Sections 72 and 83 of the Tamil Nadu Registration Act before the District Registrar, Kanyakumari for registering the document dated 15.03.2006, but the same was rejected by the District Registrar with a direction to approach the competent Civil Court, after dismissal of the appeal by the first appellate Court. In order to substantiate the above contention, the appellant has filed C.M.P. (MD) No. 4405 of 2018 for reception of the petition dated 13.12.2016 filed by the 3rd respondent before the District Registrar and the order dated 28.08.2017 passed by the District Registrar in the said petition as additional documents. Thus, he prayed to allow this appeal. 5. The learned counsel appearing for the 3rd respondent submitted that the appellant has already executed a sale-deed dated 15.03.2006 in respect of the disputed property and as such, he has no right whatsoever in respect of the property. Due to encumbrance over the property, the entire sale consideration has not been paid by the 3rd respondent and he has withheld Rs. 30,000/- on specific agreement that the appellant should clear all the encumbrance over the property, including the attachment order. By virtue of compromise made in the appellate Court, the 3rd respondent has paid Rs. 50,000/- to the decree holder and as such he has paid more than what was due for the appellant. Only due to the attachment order of the Court, the document dated 15.03.2006 was not registered and in such circumstances, it is always well within the powers of the Court to direct the registering authority to complete the registration. He would further submit that as against the ex-parte order passed in E.A. No. 73 of 2015, the petitioner has filed E.A. No. 36 of 2016 for reopening and E.A. No. 37 of 2016 to set aside the ex-parte order, but the Execution Court, by order dated 21.06.2016, passed a common order dismissing both the applications holding that the appellant has already lost all his right over the property in dispute. Till date, the said order has not been challenged and the same has attained finality and therefore, the appellant has no locus to file the appeal. He would further submit that now almost 13 years have gone from the date of registration of sale-deed dated 15.03.2006 and till date the appellant has not taken any steps to approach the Civil Court either to annul the sale-deed or for any other reliefs and therefore, the present appeal is liable to be set aside. Thus, he prayed to dismiss the appeal. 6. In order to ascertain the factum of receipt of Rs. 50,000/- as per the compromise memo, this Court directed the first respondent/plaintiff to appear before this Court. Thus, he prayed to dismiss the appeal. 6. In order to ascertain the factum of receipt of Rs. 50,000/- as per the compromise memo, this Court directed the first respondent/plaintiff to appear before this Court. But, the learned counsel for the first respondent/plaintiff filed a memo stating that he has given change of Vakalath and handed over bundle to the first respondent/plaintiff. The said memo is recorded. 7. Heard the learned counsel for the appellant and the learned counsel for the 3rd respondent. 8. The appellant has raised the following question of law for consideration: “Whether the first appellate Court is correct and having jurisdiction in directing the Sub Registrar, Eraniel, to register and release document No. 25/2006 alleged to have executed by this appellant in favour of 3rd respondent herein in a claim petition in E.A. No. 73 of 2015 in E.P. No. 65 of 2008 under Order 21 Rule 58 of C.P.C.? 9. Admittedly, the appellant himself has stated in his petition in E.A. No. 79 of 2012 that he has sold the 2nd item of the property to the 3rd respondent herein and subsequently, he left the said petition for default. Now, it is the case of the appellant that in order to save the property, as per the ill-advice of the 3rd respondent herein, he has executed a sale-deed in his favour without receipt of any sale consideration, but the said document has not been registered in view of order of attachment and that E.A. No. 79 of 2012 has been filed through brother of the 3rd respondent herein before the Court below and they purposefully left the said petition for default. Thereafter, the first respondent and 3rd respondent herein colluded together and entered into a compromise memo, by which the 3rd respondent herein obtained a direction to register the sale-deed. 10. The appellant cannot take a different stand at different stage. If he has any grievance, he can ventilate the same by approaching the appropriate forum. It is seen that in view of non-filing of counter in E.A. No. 73 of 2015, the appellant was set ex-parte. 10. The appellant cannot take a different stand at different stage. If he has any grievance, he can ventilate the same by approaching the appropriate forum. It is seen that in view of non-filing of counter in E.A. No. 73 of 2015, the appellant was set ex-parte. For setting aside the ex-parte order, the appellant has filed E.A.Nos.36 and 37 of 2016 for reopening and for setting aside the ex-parte order, but the said petitions were dismissed by the Court below, by order dated 21.06.2016, holding that having sold the property, now he cannot be permitted to participate in the proceeding. Admittedly, the appellant has not challenged the said order and it has become final. Therefore, he has no locus to file the present appeal. Hence, this Court is not inclined to deal with C.M.P. (MD) No. 4405 of 2018, which has been filed for reception of additional documents also. 11. Even assuming that the appellant has locus to file the appeal, his only contention is that under Order 21 Rule 58 C.P.C. the Court has no power to issue a direction to the Sub Register to register the sale-deed pending in Document No. 25/2006. For better appreciation, Order 21 Rule 58 C.P.C. is extracted hereunder: “Adjudication of claims to, or objections to attachment of property - (1) Where any claim is preferred to, or any objection is made to the attachment of, any property attached in execution of a decree on the ground that such property is not liable to such attachment, the Court shall proceed to adjudicate upon the claim or objection in accordance with the provisions herein contained: Provided that no such or objection shall be entertained:- (a) Where, before the claim is preferred or objection is made, the property attached has already been sold. (b) Where the Court considers that the claim or objection was designedly or unnecessarily delayed. (2) All questions (including the questions relating to right, title or interest in the property attached) arising between the parties to a proceeding or their representatives under this rule and relevant to the adjudication of the claim or objection, shall be determined by the Court dealing with the claim or objection and not by a separate suit. (2) All questions (including the questions relating to right, title or interest in the property attached) arising between the parties to a proceeding or their representatives under this rule and relevant to the adjudication of the claim or objection, shall be determined by the Court dealing with the claim or objection and not by a separate suit. (3) Upon the determination of the questions referred to in sub-rule (2) the Court shall, in accordance with such determination:- (a) allow the claim or objection and release the property from attachment either wholly or to such extent as it thinks fit. (b) disallow the claim or objection. (c) continue the attachment subject to any mortgage, charge or other interest in favour of any person. (d) pass such order as in the circumstances of the case it deems fit. (4) Where any claim or objection has been adjudicated upon under this rule, the order made thereon shall have the same force and be subject to the same conditions as to appeal or otherwise as if it were a decree. (5) Where a claim or an objection is preferred and Court, under the proviso to sub-rule (1), refuses to entertain it, the party against whom such order is made may institute a suit to establish the right which he claims to the property in dispute but, subject to the result of such suit, if any, an order so refusing to entertain the claim or objection shall be conclusive.” 12. From the above provision, it is clear that the claim petition filed under Order 21 Rule 58 C.P.C. can be maintained, if the property attached has not already been sold. Order 21 Rule 58(2) C.P.C. empowers the Court to conduct a full-fledged enquiry into all the questions, including the questions relating to right, title or interest in the property attached. Rule 58(3)(d) empowers the Court to pass any order as in the circumstances of the case it deems fit. Therefore, it cannot be contended that under Order 21 Rule 58 C.P.C. the Court has no power to issue a direction to register the sale-deed. As stated earlier, in this case, the appellant himself admitted that he has sold the 2nd item of the property to the 3rd respondent herein after purchase from the judgment debtor. Therefore, it cannot be contended that under Order 21 Rule 58 C.P.C. the Court has no power to issue a direction to register the sale-deed. As stated earlier, in this case, the appellant himself admitted that he has sold the 2nd item of the property to the 3rd respondent herein after purchase from the judgment debtor. Hence, the first appellate Court, based on the joint memo filed by the first and third respondents herein, raised the 2nd item of property from attachment and directed the Sub Registrar to register the sale-deed as per law. The word “as per law” has wider connotations. Therefore, there is no need to interfere with the order passed by the first appellate Court. Thus, the question of law is answered against the appellant. 13. In the result, this Civil Miscellaneous second appeal is dismissed. No costs. Consequently, connected C.M.P. (MD) No. 4404 of 2018 is also dismissed and C.M.P. (MD) No. 4405 of 2018 is closed.