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2023 DIGILAW 1257 (AP)

CHEPPULLA RADHAKRISHNA v. CHEPPULLA ARJUNA RAO

2023-09-01

B.S.BHANUMATHI

body2023
ORDER : (B.S. Bhanumathi, J.) The Civil Revision Petition is filed under Article 227 of Constitution of India, against the order dated 22.10.2022, dismissing I.A.No.239 of 2022 in O.S.No.78 of 2017 on the file of the Court of Senior Civil Judge, Pithapuram, filed by the plaintiff under Order I Rule 10 r/w Order VI Rule 17 and Section 151 CPC to add the proposed party/2nd respondent as the 2nd defendant in the suit and to permit the petitioner to make the following consequential amendments to the plaint :- a) To add Pendyala Yesubabu s/o Chinna Suryanarayana, Hindu, aged 27 years, A. Annavaram, Santhavaram Mandal, Tuni JCJ as 2nd defendant in short and long cause title of the plaint. b) To add 1st before the defendant in short and long cause title; c) To add 1st before the defendant wherever it occurs in the plaint; d) To add the following paragraph 5 (a) after para 5. 5(a). Subsequent to the filing of the suit and coming to know about the attachment of the petition schedule property the 1st defendant sold the property to his natural son who is the 2nd defendant herein. The plaintiff submits that though it was mentioned as a sale deed, no consideration was passed to the 1st defendant and the defendants 1 and 2 are the father and son and the 2nd defendant became a universal donee. But the document is recited as sale deed, the 2nd defendant is also liable to discharge the suit debt since the 2nd defendant in collusion with the 1st defendant and to avoid suit debt fraudulently obtained the sale deed. e) To add ‘defendants’ in the place of ‘defendant’ in prayer portion of the plaint. 2. The plaintiff filed the suit for recovery of money based on a promissory note dated 18.04.2014. Along with the suit, he filed I.A.No.657 of 2017 to attach the petition schedule property before judgment under Order XXXVIII Rule 5 CPC. The trial Court ordered conditional attachment on 07.04.2017 directing to issue notice to the respondent/ defendant to furnish security for the suit amount within 48 hours from the date of service of notice, failing which to attach the property. The property is situated in Tuni Mandal and therefore, notice of attachment was sent to the Court of Junior Civil Judge, Tuni for service on the respondent/defendant. The property is situated in Tuni Mandal and therefore, notice of attachment was sent to the Court of Junior Civil Judge, Tuni for service on the respondent/defendant. The Amin served notice on 24.04.2017 granting 48 hours time to furnish security. As the defendant failed to furnish the security, the property was attached on 26.04.2017. Subsequenlty, the defendant appeared and filed counter in I.A.No.657 of 2017. On 08.09.2017, the petition was allowed and the attachment was made absolute. Later, the trial Court went on the trial. On behalf of the plaintiff, P.Ws.1 to 3 were examined and Ex.A1 was marked. On behalf of defendant, he was examined as D.W.1 and N.Negeswara Rao was examined as D.W.2 and the matter was posted for cross-examination of D.W.3 on 17.01.2022. 3. The petitioner/plaintiff contended that after commencement of trial, he came to know that the defendant transferred the petition schedule property in I.A.No.657 of 2017 in favour of his son (the proposed defendant No.2) by executing a registered sale deed on 21.4.2017 and that initially the plaintiff thought that the defendant sold the property to a third party, but his enquiries revealed that the transferee is the natural son of the defendant given in adoption to Sri Pendyla Chinna Surya Narayana who is the father-in-law of the defendant and sold the property to avoid the debts. The sale deed was marked as Ex.A2 in the cross-examination of D.W.1, and D.W.1 denied the relationship between him and R.2. D.W.2, in his cross-examination admitted that R.2 is the natural son of D.W.1 and that R.2 was given in adoption to the father-in-law of D.W.1. The plaintiff further stated that the defendant was watching the proceedings and immediately after filing of the suit and coming to know about the order of attachment, he transferred the property in the name of his natural son to avoid the debts and later he received the notice from Court and even then he did not put to the notice of the Court about the sale deed till he was examined as D.W.1. The plaintiff further contended that the transaction is not a sale and it is only to avoid the suit debt and the defendant fraudulently and in collusion with the natural son, transferred the petition schedule property by mentioning it is a sale deed and thus, R.2 became universal donee and is liable to pay the suit debt. The plaintiff further contended that the transaction is not a sale and it is only to avoid the suit debt and the defendant fraudulently and in collusion with the natural son, transferred the petition schedule property by mentioning it is a sale deed and thus, R.2 became universal donee and is liable to pay the suit debt. As such, by abundant caution and to avoid multiplicity of litigations, the petition is filed vide I.A.No.239 of 2022 to add R.2 as D.2 in the suit and permit the consequential amendments. 4. R1 filed a counter denying the averments in the petition and mainly contending that it is false that the transaction is not a sale and that to avoid the suit liability, this defendant suddenly and in collusion with the natural son transferred the property mentioning it as a sale deed and also that the natural son of the defendant became a universal donee and is liable to pay the suit debt. It is specifically contended that the R2 is not the son of the R1 and that since the property was sold prior to filing of the suit, it cannot be attached and that R2 is in peaceful possession and enjoyment of the property and that the petitioner is a close relative of R1 and fully aware of the transaction as the petitioner’s father has alienated the property adjacent to the petition schedule property and further that the petitioner has chosen to add R2 to the suit proceedings at a belated stage, with a malafide intention to create pressure on R1 by harassing him. It is also stated that the proposed amendments are not true and correct. 5. R2 filed counter denying the averments in the petition and further stating that this respondent does not know about the proceedings between the petitioner and R1 and that he is a bonafide purchaser for valuable consideration and has been in peaceful possession and enjoyment of the same, since the date of purchase. It is further denied that the petitioner came to know about the transfer of the property in favour of this respondent after commencement of the trail. He further stated that this respondent does not know that the sale deed was marked as Ex.A2 through D.W.1 and that the defendant denied the relationship between himself and R2 and that D.W.2 admitted in his cross-examination about the relationship. He further stated that this respondent does not know that the sale deed was marked as Ex.A2 through D.W.1 and that the defendant denied the relationship between himself and R2 and that D.W.2 admitted in his cross-examination about the relationship. This respondent emphatically stated that there is no father and son relationship between R.1 and R.2. He further denied that R1 was watching the proceedings and executed the sale deed to avoid the suit debt or that he is a universal donee and is liable to pay the suit debt. 6. After hearing both parties, the trial Court dismissed the petition, holding that the transaction being sale and not gift to R.2, he cannot be considered as universal donee and the remedy available to the plaintiff is otherwise and that the petitioner can exercise his right over the petition schedule property in the execution proceedings, if any, since the sale of any property after attachment is invalid. It further opined that by adding R2 who is a subsequent purchaser after the attachment cannot be termed as universal donee and no decree can be passed against him based on the promissory note. Thus, the Court opined that R2 is not a proper and necessary party to the suit and dismissed the petition. 7. Having been aggrieved by the order, this revision petition is filed reiterating the same contentions as in the petition and further stating that any private alienation of the property after attachment is avoid as per Section 64 CPC. 8. The learned counsel for the petitioner submitted as in the petition and the grounds of revision. 9. Inspite of service of notice to R.1/defendant, no appearance has been made. 10. The learned counsel for R.2 submitted that since the transfer is a sale and not a gift, Section 128 of Transfer of Property Act has no application and so R2 cannot be called as universal donee and consequently he is not liable to pay the debt in the suit. As such, he contended that R2 is neither a necessary nor a proper party to the suit and that the trial Court had rightly dismissed the petition. 11. As such, he contended that R2 is neither a necessary nor a proper party to the suit and that the trial Court had rightly dismissed the petition. 11. Section 128 of Transfer of Property Act : Subject to the provisions of section 127, where a gift consists of the donor's whole property, the donee is personally liable for all the debts due by and liabilities of the donor at the time of the gift to the extent of the property comprised therein. 12. Section 64 of CPC : Private alienation of property after attachment to be void. (1) Where an attachment has been made, any private transfer or delivery of the property attached or of any interest therein and any payment to the judgment-debtor of any debt, dividend or other monies contrary to such attachment, shall be void as against all claims enforceable under the attachment. (2) … Explanation- For the purposes of this section, claims enforceable under an attachment include claims for the rateable distribution of assets. 13. The dates relevant to the petition are that the order of attachment was passed on 07.04.2017 and the Amin served the notice on 24.4.2017 and on 26.4.2017 the property was attached, but in between the date of order of attachment and service of notice, the defendant executed the registered sale deed on 21.4.2017. 14. Therefore, it is incorrect to state as in the counter of R1 that the transaction is before the institution of the suit. Similarly, it is incorrect to state that the transaction is affected by Section 64 of the CPC, because no notice was served to the defendant as on the date of sale deed and no attachment was effected, though a conditional order of attachment was passed as on that date. For the application of Section 64 CPC, the initial order dated 07.04.2017 does not have impact on the transaction covered by that provision. If any such transaction is made after 26.04.2017, the provision under section 64 CPC would come into operation. The factual position is that on 21.4.2017, the property was not attached. Thus, the trial Court was in error in holding that the plaintiff can work out his remedy in the execution proceedings, since the transaction is hit by the order of attachment. 15. The factual position is that on 21.4.2017, the property was not attached. Thus, the trial Court was in error in holding that the plaintiff can work out his remedy in the execution proceedings, since the transaction is hit by the order of attachment. 15. Then, according to the plaintiff, the transaction shown as sale is only to avoid the suit debt and is not a sale. It is a fact to be examined by taking evidence. If it is a gift i.e., transfer of title without consideration and all other requirements of law for a gift are fulfilled, then the transaction would be treated as gift and consequently the provision under Section 128 of Transport of Property Act would come to rescue of the plaintiff to secure his debt for enforcing it against the donee to the extent of the debt, provided it is the whole property of the defendant/R1. If the transaction is a dubious transfer to avoid the payment of suit debt, in case if it is decreed, examination of the same cannot be prevented at the threshold, without giving an opportunity to the plaintiff to lead evidence thereon. If the transaction amounts to a gift, to a universal donee, the plaintiff can seek a relief against R2 as well for discharging the liability of the defendant/R1 and therefore, he becomes a necessary party as in his absence the nature of the transaction cannot be decided and the liability cannot be fastened to R2 as it would prejudicially affect his interest. Therefore, his presence in the suit is required. 16. Because the trial Court was under the impression that since the order of conditional attachment was passed on 07.04.2017 and the transaction in question is subsequent thereto i.e., on 21.4.2017, the same is covered by Section 64 CPC and the plaintiff can lay his claim in respect of the suit debt against the property in his execution proceedings, it dismissed the petition. Since the foundational observation or the opinion of the trial Court in dismissing the petition is erroneous and in fact the presence of the R2 in the suit is required, the order needs to be set aside and the petitioner/plaintiff shall be permitted to implead R2 in the suit. In view of the permitting the plaintiff to implead the R2, all those consequential amendments sought are necessary and as such, they shall also be allowed. 17. In view of the permitting the plaintiff to implead the R2, all those consequential amendments sought are necessary and as such, they shall also be allowed. 17. In the result, the Civil Revision Petition is allowed and the order dated 22.10.2022 in I.A.No.239 of 2022 in O.S.No.78 of 2017 on the file of the Court of Senior Civil Judge, Pithapuram is set aside. I.A.No.239 of 2022 stands allowed as prayed for. There shall be no order as to costs. Pending miscellaneous petitions, if any, shall stand closed.