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2019 DIGILAW 99 (MAD)

K. Saravanan v. Subbulakshmi

2019-01-07

V.M.VELUMANI

body2019
JUDGMENT : V.M. VELUMANI, J. Prayer: This Civil Miscellaneous Appeal is filed under Section 104 read with Order XLIII of C.P.C. against the fair and decretal Order dated 20.08.2013 made in E.A. No. 246 of 2011 in E.P. No. 47 of 2011 in O.S. No. 37 of 2006 on the file of Principal District Court, Thoothukudi. 1. This Civil Miscellaneous Appeal is filed against the fair and decretal order dated 20.08.2013 made in E.A. No. 246 of 2011 in E.P. No. 47 of 2011 in O.S. No. 37 of 2006 on the file of Principal District Court, Thoothukudi. Facts of the Case: 2. The appellant is third party to the suit O.S. No. 37 of 2006 and E.P. No. 47 of 2011. The first respondent herein filed the said suit against the second respondent for recovery of money. The first respondent along with suit filed the application for attachment before judgment of the suit property on the ground that the second respondent is making arrangements to sell the property to the third party with an intention to defeat the interest of first respondent. The second respondent appeared before the Court and filed counter in the application giving an undertaking on 18.10.2006 that he will not alienate the property and give the power to any third party to deal with the property. Based on the said undertaking, application for attachment before judgment was dismissed. The first respondent gave a public notice in paper publication of "Dinamalar" dated 06.05.2007 about the filing of the suit and undertaking given by the second respondent and warned the general public about the pendency of the proceedings. After the suit was decreed, the first respondent filed E.P. No. 47 of 2011 and obtained order of attachment and effected the said order. 3. According to the appellant, the property originally belonged to one Ramasamy Chettiar. From him, one Subbulakshmi/first respondent purchased the property on 16.11.1973. The said Subbulakshmi sold the property to one Balasubramania Aasari on 29.01.1975. The second respondent purchased the property from the said Balasubramania Aasari on 02.02.2006. In turn, the second respondent sold the property to one V. Balasubramanian on 22.06.2007. The appellant purchased the property from the said V. Balasubramanian on 12.11.2007 and he is in possession and enjoyment of the property from that date onwards. In October 2011, an attachment notice was published in the schedule property. In turn, the second respondent sold the property to one V. Balasubramanian on 22.06.2007. The appellant purchased the property from the said V. Balasubramanian on 12.11.2007 and he is in possession and enjoyment of the property from that date onwards. In October 2011, an attachment notice was published in the schedule property. From the said notice, the appellant came to know that the first respondent is trying to sell the property through Court auction, against the interest of appellant. The appellant is bona-fide purchaser for valuable consideration. The appellant is not aware of the dealings between the respondents. The first respondent knowing fully well the purchase by the appellant has got order of attachment in her favour. The attachment is not sustainable. Appellant filed E.A. No. 246 of 2011 in E.P. No. 47 of 2011 and prayed for raising order of attachment. 4. The first respondent in the counter affidavit submitted that the second respondent has given an undertaking in the counter not to alienate the property. In view of the said undertaking, the application for attachment before judgment was dismissed. The first respondent has given public notice on 06.05.2007 in "Dinamalar" daily about the pendency of suit and any sale by second respondent is not valid. Inspite of the same, the second respondent sold the property. The property purchased by the appellant as well as his vendor are not valid and binding on the first respondent. After the suit being decreed, the first respondent has filed E.P. for sale of the property and the property was attached as per the procedure. The purchase by the appellant and his vendor are sham and nominal and prayed for dismissal of the E.As. 5. Before the learned Judge, the appellant examined himself as PW-1 and one Sivaramachandran was examined as PW-2 and marked nine documents as Ex.P1 to Ex.P9. The first respondent examined herself as RW-1 and marked two documents as Ex.R1 and Ex.R2. 6. The learned Judge considering the averments made in the affidavit, counter affidavit, oral and documentary evidence, dismissed the application. 7. Against the said order of dismissal dated 20.08.2013 made in E.A. No. 246 of 2011 in E.P. No. 47 of 2011 in O.S. No. 37 of 2006, the appellant has come out with the present appeal. 8. 6. The learned Judge considering the averments made in the affidavit, counter affidavit, oral and documentary evidence, dismissed the application. 7. Against the said order of dismissal dated 20.08.2013 made in E.A. No. 246 of 2011 in E.P. No. 47 of 2011 in O.S. No. 37 of 2006, the appellant has come out with the present appeal. 8. The learned counsel appearing for the appellant contended that the undertaking given by the second respondent was neither accepted nor acted upon and the said undertaking had not been recorded and has no legal force. The second respondent had purchased the property from one Balasubramania Asari and in turn, the second respondent sold the same to one V. Balasubramanian, from whom, the appellant purchased the property on 12.11.2007, while the order of attachment was made on 26.09.2011. The learned Judge erroneously held that the appellant was aware of the paper publication effected by the first respondent. The appellant got prior right over the properties attached by the first respondent and the same is binding on the first respondent. In Execution Proceedings, the property of judgment debtor only can be attached. On the date of attachment order in E.P. the second respondent was not the owner of the property and appellant is the owner having purchased the same for valuable consideration. In support of his contention, the learned counsel for the appellant relied on the following judgments: (i) M.V. Rajasekaran vs. Balagangadharan and Another, C.M.A. No. 357 of 1983, dated 03.09.1990: "........4. Before me, the learned counsel for the appellant (decree-holder) contended that the undertaking given by the second respondent at the time of hearing on 20-9-1979 in the petition for attachment before judgment is as good as an order of injunction, and consequently, the alienation made in contravention of the said undertaking shall not bind the decree-holder and the decree-holder is entitled to proceed against the bus in question, treating it to be the property of the second respondent. The learned counsel appearing for the first respondent reiterated the submissions made before the Court below, and submitted that the order of the Court below was perfectly justified and calls for no interference. 5. The learned counsel appearing for the first respondent reiterated the submissions made before the Court below, and submitted that the order of the Court below was perfectly justified and calls for no interference. 5. After a careful consideration of the contentions raised by the learned counsel on either side, I am of the view that the order of the Court below is quite in accordance with law and calls for no interference by me. So far as the present case is concerned, admittedly, there was only an undertaking, and there was no order of attachment as such. In view of the said position, there was no occasion for effecting any attachment of the bus at that point of time, and it is also not argued that there was any actual attachment effected pending suit. As stated supra, the attachment was effected only on 10-9-1981 after the executing court ordered attachment on 9-9-1981. As against this position, the first respondent claims rights to the vehicle by virtue of his purchase and transfer made in his favour as early as on 26-6-1980. 6. The issue raised before me is not res integra. The matter is covered by the ratio of this Court in the decisions reported in Sinnappan vs. Arunachalam Pillar, A.T.K.P.M. Muthiah Chettiar vs. Palaniappa Chettiar and Others and Padmgvathi Ammal vs. Marudhachalam Pillai. In these judgments, the legal position has been categorically laid down that the attachment is a real thing and the property must in point of view of fact must be attached and a mere order for attachment before judgment is not sufficient compliance of the provisions. The learned Judges have held that the order is one thing and attachment is another, and no property can be declared to be attached unless first the order for attachment has been made and secondly in execution of that order, the other procedure prescribed by Rules in the Code is complied with and attachment effected. The plea that a property was in law attached, the moment the order is passed, was repelled, and at the expense of repetition, it can be said that in this case, there was not even an order of attachment before the judgment. The plea that a property was in law attached, the moment the order is passed, was repelled, and at the expense of repetition, it can be said that in this case, there was not even an order of attachment before the judgment. It was further held in those decisions that attachment operated as a valid prohibition against alienation of the property attached only from the date on which the necessary proceedings was made and copy of the order affixed as contemplated under Order 21 Rule 54 of the Code of Civil Procedure. So far as the facts of this case are concerned, there was no attachment within the meaning of law on the date when the first respondent became the owner of the vehicle and consequently, his rights cannot be in any manner prejudiced by the decree obtained against the second respondent by the appellant in the suit in question. Consequently, I hold that there are no merits in the above appeal and the order of the Court below does not call for any interference." (ii) Kamda Ammal vs. Avadiappa Pathar and Others, (1991) 1 SCC 715 : ".........12. In the above case this Court has gone even to the extent that not only a sale deed but even an agreement of sale will prevail over attachment before judgment made subsequent to such agreement for sale. We do not want to express any opinion with regard to the case of an agreement for sale, but we are of the confirmed opinion that a sale deed having been executed prior to attachment before judgment, though registered subsequently will prevail over attachment before judgment." (iii) Sinnappan alias Hetharmamana Rowther vs. Arunachalam Pillai and Others, (1919) 37 MLJ 375 : "......5. There is only one ruling of this Court in point and that is the ruling in Ramanayakudu vs. Boya Pedda Basappa, (1918) 42 ILR Mad. 565 to which Phillips and Krishnan, JJ., were parties. That is directly in support of the view just indicated. There is another decision by Phillips and Kumaraswami Sastri, JJ. in Venatasubbiah vs. Venkata Seshiah, (1917) 42 ILR 1. That was a case of attachment before judgment and the question for consideration was whether, where an order for attachment was made before judgment and the attachment was not actually made until after the decree, that was a valid attachment. There is another decision by Phillips and Kumaraswami Sastri, JJ. in Venatasubbiah vs. Venkata Seshiah, (1917) 42 ILR 1. That was a case of attachment before judgment and the question for consideration was whether, where an order for attachment was made before judgment and the attachment was not actually made until after the decree, that was a valid attachment. They hold that it was a valid attachment and in so holding certain general expressions were used in the course of the judgment which have been seized upon by Mr. Jayarama Iyer in support of his argument. The general observations ought to be read in connection with the point which the learned judges had before them and if so read they cannot be said in any way to countenance the construction contended for on behalf of the appellant. 6. There is only one other case that has been brought to our notice and that is a Calcutta decision in Kanai Lal vs. Ahed Bux. That also is in support of the view which has been indicated. The answer will therefore be that an attachment operates as a valid prohibition against alienation of the attached property only from the date on which the necessary proclamation is made copy of the order affixed as contemplated in O.XXI, R.54." (iv) Sri Humbi Hema Gooda and Others vs. Tamil Nadu State Transport Corporation (CBE) Ltd. Coimbatore and Others, 2012 (1) CTC 407 : "...10.A reading of the above judgment would show that if the order of attachment is not passed, as required under Order 38, Rule 5 (1), it has no legal consequences and worth as a waste paper. Before passing an order of attachment, it is the duty of the Court to be satisfied itself from the particulars made available that the Defendant is about to dispose of the whole or any part of his or her property or he or she is about to remove the whole or any part of his or her property from the local limits of the jurisdiction of the Court with a view to delay or defeat or obstruct the execution of any decree that may be passed against him or her. In the instant case, without following the conditions stipulated under Order 38, the order of attachment has been passed. In the instant case, without following the conditions stipulated under Order 38, the order of attachment has been passed. Hence, in my considered opinion, it is not a valid attachment under Order 38, Rule 5 and the Appellant is a bona-fide purchaser of the property of the 4th Respondent." (v) Sri Krishna Chit Funds (Sattur Private Limited) vs. R.S. Pillai and Another, 2000 (2) CTC 524 : "...23. To sum up it is clear that both the Courts below failed to take note of Ex.P-11 in which even though proper return endorsement had been made by the sub Registrar's office, Sattur and sent to the Sub Court, there is no evidence to show that it-was properly complied with and the order of attachment was re-communicated to the sub Registrar's office. When once the intimation had been returned back and when there is no evidence that the same was re-communicated with required and correct particulars, there is no possibility of the order of attachment being entered in the concerned registers maintained in the Office of the Sub Registrar and in the Encumbrance Certificate. Only if the said intimation was sent in accordance with the rules and if it was accepted by the Sub Registrar's Office as correct, then only the particulars as to attachment before judgment will/be entered in the encumbrance certificate. AS per the conclusion of the learned Subordinate Judge/the intimation did not contain Ward No.......area and value of the property. The defective intimation sent by the Sub Court had been returned back on 28.2.97. The appellant -had purchased the property on 24.12.97. It is also clear that the encumbrance certificate was issued after verifying the encumbrance and other particulars available from the registers maintained in the sub Registrar's office for the period upto 30.12.1997 in this encumbrance certificate, the entry as to attachment before judgment does not find a place. In such a circumstance, there is no possibility of the appellant knowing the order of attachment; accordingly I am of the view that the Courts below committed an error in holding that the appellant had knowledge about the attachment. Though the appellant had deposed as PW-I and explained his case, nothing prevented the respondents from explaining their stand before the Sub-Court. The fact remains that no one was examined on the side of the respondents. Though the appellant had deposed as PW-I and explained his case, nothing prevented the respondents from explaining their stand before the Sub-Court. The fact remains that no one was examined on the side of the respondents. In the absence of any such evidence on the side of the respondents, both the Courts below ought to have believed the oral and documentary evidence let in by the appellant. Though the appellant had not produced the original of Ex.P-1 he had produced the registration copy and ho objection was made at the time of marking the said document.. Therefore, the observation of both the courts below that non-production of original deed is fatal to the case of the appellant cannot be accepted. Like-wise, both the courts below have committed an error in holding that mere sending intimation to the Sub-Registrar's office is sufficient compliance of order 38. Rule 11-B and Order 21, Rule 58- A C.P.C. The said conclusion cannot be accepted when admittedly the intimation does not contain relevant particulars and there is no proof that the same was re-communicated with relevant particulars. The evidence amply show that the appellant is a bona-fide purchaser for value and in the absence of any entry in the registers maintained by the Sub Registrar's Office, Sattur where the land in question situate the appellant was not aware of the order of attachment before judgment. I accept the contention that both the Courts below failed to note that mandatory provisions under Order 21, Rule 58-A and Order 38, Rule 11-B were not complied with and I hold that the claimant-appellant has established his case to set aside the order of attachment made in I.A. No. l17 of 1997 in O.S. No. l8 of 1997 on the file of Subordinate Judge, Sivakasi." 9. The learned counsel appearing for the first respondent reiterated the averments made in the counter and further contended that the appellant admitted in his cross examination that he was aware of the public notice issued by the first respondent. The appellant's vendor after purchasing the property from the second respondent, has sold the property to the appellant within five months, which shows that the purchase by the appellant's vendor as well as appellant are sham and nominal and the appellant is not a bona-fide purchaser. The appellant's vendor after purchasing the property from the second respondent, has sold the property to the appellant within five months, which shows that the purchase by the appellant's vendor as well as appellant are sham and nominal and the appellant is not a bona-fide purchaser. Undertaking given by the second respondent in the nature of injunction and is binding on the appellant as well as his vendor and prayed for dismissal of the Civil Miscellaneous Appeal. In support of his contention, the learned counsel for the first respondent relied on the following judgment: C. Subramanian vs. N. Chokalingam and Another, 2011 (2) CTC 401 "...I may at this stage dispose of a contention advanced by Mr. Narayanaswami Iyer on behalf of the petitioner that the undertaking given by the defendant or his vakil could enure only pending the disposal of the attachment petition and with the dismissal of the petition on 21st December 1933 the undertaking itself came to an end. I am unable to accept this contention because it will not be a reasonable or even an intelligible construction of the order. The natural meaning of the order is that an attachment is not necessary because of the undertaking given." 10. Heard the learned counsel appearing for the appellant as well as the first respondent and perused all the materials available on record. 11. From the materials on record, the following are admitted facts: (a) The first respondent filed suit O.S. No. 37 of 2006 against the second respondent for recovery of money. (b) The first respondent filed I.A. No. 50 of 2006 for attachment before judgment, the property belonging to the second respondent, which is subject matter of this appeal. (c) The second respondent filed counter affidavit on 18.10.2006, giving an undertaking not to alienate the property or execute Power of Attorney to anybody to deal with the property. (d) The first respondent gave a paper publication on 06.05.2007 in one issue of Dinamalar daily newspaper about pendency of suit and informing the public not to purchase the property. (e) The Trial Court did not record the undertaking given by the second respondent and closed I.A. No. 50 of 2006, as trial has commenced. (f) The second respondent sold the property to V. Balasubramanian, the vendor of the appellant on 22.06.2007, who in turn sold the property on 12.11.2007 to the appellant. (e) The Trial Court did not record the undertaking given by the second respondent and closed I.A. No. 50 of 2006, as trial has commenced. (f) The second respondent sold the property to V. Balasubramanian, the vendor of the appellant on 22.06.2007, who in turn sold the property on 12.11.2007 to the appellant. (g) The suit was decreed on 10.07.2007. The first respondent filed E.P. No. 47 of 2011 for sale of the property to realize the decretal amount. The Executing Court ordered attachment on 26.09.2011 and attachment was effected on 04.10.2011. (h) The appellant filed E.A. No. 246 of 2011 for raising attachment on the ground that the second respondent was not owner on the date of attachment and appellant purchased the property for valuable consideration four years earlier to order of attachment. 12. From the judgments relied on by the learned counsel appearing for the appellant and first respondent, the following principle emerged: The judgments relied on by the learned counsel appearing for the appellant: (i) In a suit for money, to create a charge over the immovable property of the defendant, pending suit, there must be not only an order of attachment under Order XXXVIII Rule 6 C.P.C. and also the proclamation of the said attachment as per Rule 7 and Order XLI Rule 54 C.P.C. (ii) The order of attachment before the judgment comes into force only when the proclamation as contemplated under Order XXI Rule 54(2) is complied with. (iii) A sale by defendant after order of attachment before proclamation is valid. (iv) When the Sub-Registrar of Assurance returns the order of attachment before judgment to the Court for rectification and Court fails to return the order after rectification, the sale by defendant is valid. (v) The Hon'ble Apex Court has held that when a sale deed is executed before attachment and registered after attachment, the same is valid. The judgment relied on by the learned counsel appearing for the first respondent: When an undertaking is given, there is no necessity to order attachment. 13. In view of the above facts, the contention of the learned counsel appearing for the first respondent that purchase by appellant and his vendor are sham and nominal as they were aware of the paper publication with regard to pendency of suit against the second respondent, is without merits. 13. In view of the above facts, the contention of the learned counsel appearing for the first respondent that purchase by appellant and his vendor are sham and nominal as they were aware of the paper publication with regard to pendency of suit against the second respondent, is without merits. Similarly, the contention of the learned counsel appearing for the first respondent that in view of the undertaking given by the second respondent, there is no necessity for an order of attachment is also without merits. As rightly pointed out by the learned counsel appearing for the appellant, the Court did not accept the undertaking or did not act on the said undertaking. From the order dated 09.06.2007 made in I.A. No. 50 of 2006 filed in the typed set of papers, it is seen that the Trial Court closed the said I.A on the ground that “Trial commenced in the suit”. There is nothing on record to show that the undertaking given by the second respondent was recorded by the Trial Court. It will be useful to refer to Order XXXVIII Rules 5, 6 and 7 and Order XXI Rule 54 (2) C.P.C. Order XXXVIII: Attachment before judgment “5. Where defendant may be called upon to furnish security for production of property: (1) Where, at any stage of a suit, the Court is satisfied, by affidavit or otherwise, that the defendant, with intent to obstruct or delay the execution of any decree that may be passed against him:- (a) is about to dispose of the whole or any part of his property. (b) is about to remove the whole or any part of his property from the local limits of the jurisdiction of the Court, the Court may direct the defendant, within a time to be fixed by it, either to furnish security, in such sum as may be specified in the order, to produce and place at the disposal of the Court, when required, the said property or the value of the same, or such portion thereof as may be sufficient to satisfy the decree, or to appear and show cause why he should not furnish security. (2) The plaintiff shall, unless the court otherwise directs, specify the property required to be attached and the estimated value thereof. (2) The plaintiff shall, unless the court otherwise directs, specify the property required to be attached and the estimated value thereof. (3) The Court may also in the order direct the conditional attachment of the whole or any portion of the property so specified. (4) If an order of attachment is made without complying with the provisions of sub-rule (1) of this rule such attachment shall be void. 6. Attachment where cause not shown or security not furnished: (1) Where the defendant fails to show cause why he should not furnish security, or fails to furnish the security required, within the time fixed by the Court, the Court may order that the property specified, or such portion thereof as appears sufficient to satisfy any decree which may be passed in the suit, be attached. (2) Where the defendant shows such cause of furnishes the required security, and the property specified or any portion of it has been attached, the Court shall order the attachment to be withdrawn, or make such other order as it thinks fit. 7. Mode of making attachment - Save as otherwise expressly provided, the attachment shall be made in the manner provided for the attachment of property in execution of a decree.” ORDER XXI: 54. Attachment of immovable property: (2) The order shall be proclaimed at some place on or adjacent to such property by beat of drum or other customary mode, and a copy of the order shall be affixed on a conspicuous part of the property and then upon a conspicuous part of the court-house, and also, where the property is land paying revenue to the Government in the office of the Collector of the district in which the land is situate: Where the property is land situate in a village, also in the office of the Gram Panchayat, if any, having jurisdiction over that village. 14. A reading of Order XXXVIII Rule 5 reveals, the Court must satisfy that the defendant with an intent to obstruct delay or execution of any decree that may be passed against him, is about to dispose of the whole or part of his property or is about to remove the same, direct the defendant to furnish security for the same specified therein within the time limit fixed. If the defendant fails to furnish such security, the Court under Rule 6 has to order attachment. If the defendant fails to furnish such security, the Court under Rule 6 has to order attachment. When attachment is ordered, the plaintiff as per Rule 7 has to effect proclamation. The mode of proclamation is as per Order XXI Rule 54 (2) C.P.C. If the defendant furnishes security as ordered by the Court, the order of attachment shall be raised. In the present case, the Court has not passed any order as per Order XXXVIII Rule 6, either accepting the security furnished by second defendant or order attachment. The Court has closed the application on the ground that, trial has commenced. In view of no attachment before judgment was ordered, the proclamation as contemplated by Order XXXVIII Rule 7 and Order XXI Rule 54 (2) C.P.C. was effected. 15. It is pertinent to note that the second respondent sold the property to one V. Balasubramanian on 22.06.2007, pending suit. The first respondent did not take any proceedings against the second respondent for alleged violation of undertaking given by him in the suit. Further, the suit was decreed on 10.07.2007 and first respondent filed E.P. No. 47 of 2011. Meanwhile, the said V. Balasubramanian had sold the property to appellant on 12.11.2007 itself. In view of the above facts, the contention of the learned counsel appearing for the appellant that the order of attachment dated 26.09.2011 effected on 04.10.2011 is invalid as the second respondent was not the owner of the property on that date and only property belonging to judgment debtor alone can be attached is acceptable. The above sales are before the order of attachment and therefore, they are valid and legal. 16. The Executing Court without considering Order XXXVIII Rules 5, 6 and 7 and Order XXI Rules 54 and 54 (2) C.P.C. has erroneously ordered attachment on 26.09.2011. Similarly, without properly appreciating the above rules, has erroneously dismissed E.A. No. 246 of 2011. 17. The judgments relied on by the learned counsel appearing for the appellant are squarely applicable to the facts of the present case. The judgment relied on by the learned counsel appearing for the first respondent does not advance the case of the first respondent. 18. In the result, the order dated 20.08.2013 made in E.A. No. 246 of 2011 in E.P. No. 47 of 2011 in O.S. No. 37 of 2006 is set aside. The judgment relied on by the learned counsel appearing for the first respondent does not advance the case of the first respondent. 18. In the result, the order dated 20.08.2013 made in E.A. No. 246 of 2011 in E.P. No. 47 of 2011 in O.S. No. 37 of 2006 is set aside. E.A. No. 246 of 2011 is allowed and Civil Miscellaneous Appeal is allowed. No costs. Consequently, connected Miscellaneous Petition is closed.