Madras High Court
Parvathi vs V.A.Jothiramalingam ...1St on 2 September, 2025
Author: T.V.Thamilselvi
Bench: T.V. Thamilselvi
S.A.No.1339 of 2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 02.09.2025
CORAM:
THE HONOURABLE MRS. JUSTICE T.V. THAMILSELVI
S.A.No.1339 of 2013
and
C.M.P.No.4180 of 2020
Ramu Gounder (deceased)
1.Parvathi
2.Ramesh
3.Rajendiran
4.Loganathan ...Appellants/Respondents/
Legal heirs of the plaintiff
Vs.
1.V.A.Jothiramalingam ...1st Respondent/Appellant/1st Defendant
2.Pazhanisamy ...2nd Respondent/2nd Respondent/3rd Defendant
Prayer: Second Appeal is filed under Section 100 of the Civil Procedure Code
against the Judgment and Decree dated 19.03.2013 made in A.S.No.6 of 2008
on the file of the learned Subordinate Judge, Arni, reversing the Judgment and
Decree dated 15.06.2007 made in O.S.No.808 of 1989 on the file of the learned
District Munsif, Arni.
1/26
https://www.mhc.tn.gov.in/judis ( Uploaded on: 30/09/2025 01:17:38 pm )
S.A.No.1339 of 2023
For Appellants : Mrs.V.Srimathi
For Respondents : Mr.P.Seshadri for R1
No appearance for R2
JUDGMENT
Challenging the reversal findings of the First Appellate Court, the legal heirs of the original plaintiff preferred this Second Appeal.
2.The parties are described in the same array as in the Original Suit.
3.The 2nd defendant remained ex parte before the Trial Court. Before the Trial Court, one Ramu Gounder filed a suit against the three defendants praying to set aside the Decree and also to declare his right and title over the suit property as described in the Plaint Schedule situate at Ariyapadi Village, Arni Taluk, Thiruvannamalai District.
4.The plaintiff contended that the suit property absolutely belongs to the 2nd defendant from whom he purchased the suit property for a valuable consideration under a registered Sale Deed dated 03.06.1987. The said property was sold to him by the 2nd defendant in order to discharge his antecedent debts including the 1st defendant. The 3rd defendant is the son of the 2nd defendant. 2/26 https://www.mhc.tn.gov.in/judis ( Uploaded on: 30/09/2025 01:17:38 pm ) S.A.No.1339 of 2023 Ever since from the date of purchase, the plaintiff is in possession and enjoyment of the same by cultivating the subject lands. While so, the 1st defendant claimed right over the suit property stating that he already filed suit O.S.No.546 of 1987 against the 2nd defendant for money due. As the amount was not paid, he attached the suit property for the alleged due He brought the property for sale in E.P.No.467 of 1989 in which the the 1st defendant was permitted to bid and set off. By purchase in the Court auction on 02.08.1989 having came to know that the plaintiff filed a claim petition in E.A.No.415 of 1989. But, without adjudicating the issue, the Executing Court has dismissed the application as belated without any proper enquiry. Hence, he filed the present suit to declare the said Decree obtained in O.S.No.546 of 1987 as well for consequential execution proceedings, would not bind him and also prayed to declare his title over the suit property.
5.The 2nd and 3rd defendants remained ex parte. The 1st defendant contested the suit stating that against the 2nd defendant, he filed a suit in O.S.No.546 of 1987 for money due and attached the material on 07.07.1987. The plaintiff also knew the said proceedings. In order to defeat and defraud his claim, the 2nd defendant colluded with the plaintiff purchased antedated stamp papers and created a fabricated Sale Deed said to be executed on 03.06.1987, 3/26 https://www.mhc.tn.gov.in/judis ( Uploaded on: 30/09/2025 01:17:38 pm ) S.A.No.1339 of 2023 but it was registered only on 21.07.1987 which shows the fraudulent act of both the parties. Therefore, the alleged Sale would not bind him. Furthermore, he would submit that at the time of attachment made, the plaintiff also signed as one of the witnesses in the Warrant, thereby, he estopped by his conduct. As per the auction sale, he purchased the property until then the plaintiff has not initiated any proceeding and also denied that the 2nd defendant sold the property that too discharge the antecedent debts. Therefore, he contended that the alleged Sale Deed is to defraud his claim. Hence, he prayed for dismissal of the suit.
6.Before the Trial Court, both the parties adduced oral and documentary evidence. On the side of the plaintiff, the 1st plaintiff had examined himself as P.W.1 and four witness have been examined as PW2 to PW5. Ex.A1 to Ex.A29 were marked. On the side of the defendants, the 2nd defendant had examined himself as D.W.1 and one Dakshinamoorthi as D.W.1. Ex.B1 to Ex.B17 were marked. Ex.C1 to Ex.C3 were marked.
7.The Trial Court on considering the oral and documentary evidence of 4/26 https://www.mhc.tn.gov.in/judis ( Uploaded on: 30/09/2025 01:17:38 pm ) S.A.No.1339 of 2023 both sides as well as the prayer sought in the suit framed two issues; (1)Whether the E.P. Proceedings executed by the 2nd defendant is liable to be set aside? and (2)Whether the plaintiff is the absolute owner of the property?. To adjudicate those issues, the Trial Court has analysed the entire evidence on record and finally held that the 2nd defendant had antecedent debts and to settle those debts, he offered to sell the properties to the plaintiff. Accordingly, the Sale Deed was executed on 03.06.1987, but due to non availability of stamps papers, they purchased them in various places and registered a Sale Deed on 21.07.1987. Most of the debts were discharged by the plaintiff, out of sale consideration, including two other attachments over the property, by cancelling two other auction proceedings initiated by other debtors in E.P.Nos.534 of 1987 and 685 of 1987. Therefore, the plaintiff established that the 2nd defendant sold the property in order to discharge his antecedent debts and the 1st defendant, one of the creditors of the 2nd defendant, is not inclined to receive the amount. On the other hand, having known about the sale transaction made by the plaintiff, they purposely filed the suit O.S.No.546 of 1987 and obtained an ex parte decree and also get the order of attachment and attached the property on 07.07.1987. In the meanwhile, the Sale Deed was registered on 21.07.1987. As per the provisions of Law under the Registration Act, it relates back to Section 47 of the Registration Act. After registration, it will relate back to the date of execution 5/26 https://www.mhc.tn.gov.in/judis ( Uploaded on: 30/09/2025 01:17:38 pm ) S.A.No.1339 of 2023 of the Sale Deed. Therefore, on 07.07.1987, the property was already purchased by the plaintiff as such is valid. Thereafter, in the auction proceedings, the 1st defendant brought the suit property for auction and participated in the said proceedings and executed a Sale Deed on 02.06.1989. Immediately, the plaintiff filed a claim petition but the same was dismissed by the Executing Court without any adjudication. Thereafter, he came forward with the present suit, as such, is maintainable and held that the execution of the Sale Deed was also proved by the plaintiff. However, the defendants are not able to establish that the plaintiff was aware of the attachment proceedings, thereby, finally concluded that the execution proceedings would not bind the plaintiff, as the absolute owner of the properties as per the Sale Deed dated 03.06.1987. Thus, the suit was decreed.
8.Challenging the said findings, the 2nd defendant filed an appeal in A.S.No.6 of 2008 on the file of the learned Subordinate Judge, Arni. The First Appellate Court has analysed the appeal contested by the 2nd defendant. By this time, the original plaintiff Ramu Gounder died and his legal heirs have contested the Appeal Suit. The First Appellate Court after analysing the entire evidence independently framed separate point for consideration and finally held that in the auction, the purchase made by the 2nd defendant was admitted by the 6/26 https://www.mhc.tn.gov.in/judis ( Uploaded on: 30/09/2025 01:17:38 pm ) S.A.No.1339 of 2023 plaintiff. Thereafter, the claim application filed by the plaintiff in E.A.No.415 of 1989 was also dismissed as no merit. Instead of preferring any appeal against the said dismissal order under Order 21 Rule 58 of Code of Civil Procedure, the plaintiff filed the present suit to set aside the Order and Decree passed in E.A.No.415 of 1989, as such, is not maintainable for the reason that the plaintiff had knowledge about the attachment before the Judgment on 06.07.1987 itself nor the plaintiff had taken any step to register the Sale Deed which was in exist. After came to know about the sale the stamp papers of the Sale Deed also not purchased in one place and the purchase made in different places also is acceptable one and as on date, the sale in the auction stands in the name of the 1st defendant is not set aside. Besides as per Ex.C1 – Attachment Notice dated 07.07.1987, the plaintiff was also one of the attestors and through Ex.C.1 and Ex.C.2, the 1st defendant proved that the original owner (2nd defendant) attempted to sell the property. Therefore, he obtained an order of attachment in I.A.No.580 of 1987 (Order of attachment before Judgment), thereafter only the Sale Deed was registered in favour of the plaintiff. Though the execution of Sale Deed is 03.06.1987, it is not retrospective effect and also held that as per Section 47 of the Registration Act, the Sale could not be given effect prior to the registration, thereby, Ex.A.1 – Sale Deed came into effect only on 21.07.1987 and the attachment was made on 07.07.1987 and it was also known to the 7/26 https://www.mhc.tn.gov.in/judis ( Uploaded on: 30/09/2025 01:17:38 pm ) S.A.No.1339 of 2023 plaintiff. Therefore, the attachment proceedings as well as the Court auction purchase made by the appellant is invalid. On the date of the attachment, the sale was not completed. Therefore, the plaintiff is not entitled for both the relief and accordingly, the findings of the Trial Judge was set aside and the appeal was allowed. Challenging the reversal findings of the First Appellate Court, the legal heirs of the original plaintiff preferred this Second Appeal.
9.At the time of admission, this Court had framed the following Substantial Questions of Law:
“(1)Whether the Lower Appellate Court is right in allowing the appeal against the settled principles of Law that registration relates back to the date of execution of Sale Deed?
(2)Whether the Lower Appellate Court is right in allowing the appeal without following the Judgment reported in 1990 TLNL 33 by the Full Bench of the Hon'ble Supreme Court?
(3)Whether the Lower Appellate Court is right in reversing the Judgment of the Trial Court when the Judgment 8/26 https://www.mhc.tn.gov.in/judis ( Uploaded on: 30/09/2025 01:17:38 pm ) S.A.No.1339 of 2023 challenged before the Lower Appellate Court squarely falls under provision of Order 21 Rule 58(5) of CPC?”
10.The learned counsel appearing for the appellant would argue that the First Appellate Court erred in allowing the appeal against the settled principles of Law. When the registration of Sale Deed relates back to the date of execution of the Sale Deed, without appreciating Section 47 of the Registration Act properly allowed the appeal, as such, is illegal and liable to be set aside. He would also submit that after the execution of the Sale Deed in favour of the plaintiff, attachment was made thereafter only. The 1st defendant purchased the property but the First appellant failed to take note of those events and erroneously held that the auction sale was made by the 1st defendant, as such, is valid and it is liable to be set aside. He would also submit that the First Appellate Court failed to take note of the fact that the Sale Deed stands in the name of the plaintiff was not challenged by the 1st appellant and also failed to appreciate the fact that on the date of execution of the Sale, stamp papers were on demand. Therefore, it was purchased from various places. Without appreciating the same, the appeal was allowed filed by the 1st defendant, as such, is improper appreciation of both Law and facts. Hence, he prayed for dismissal of the appeal. The learned counsel for the appellant would submit that 9/26 https://www.mhc.tn.gov.in/judis ( Uploaded on: 30/09/2025 01:17:38 pm ) S.A.No.1339 of 2023 considering the ratio laid down in 1990 TLNL 33 by the Full Bench of the Hon'ble Supreme Court, wherein it was held that after registration, it will relate back to the date of execution of the Sale Deed. Therefore, he prayed to set aside the findings of the First Appellate Court. Further, he would submit that the First Appellate Court failed to take note of the fact that the plaintiff is able to establish that the 2nd defendant sold the property in order to discharge his debts and the same was proved by the oral and documentary evidence under Ex.A.2 to Ex.A.9 properly. Further, the Trial Court elaborately analysed the entire facts and documents and rightly granted the relief in favour of the plaintiff. Hence, he prayed to set aside the findings of the First Appellate Court.
11.By way of reply, the learned counsel for the respondents would contend that the 1st respondent filed a suit in O.S.No.546 of 1987 on 06.07.1987 against the 2nd defendant for recovery of money under a Promissory Note along with I.A.No.580 of 1987 and obtained an order of attachment for the lands belong to the 2nd defendant before Judgment, which is described as the suit property herein. He also averred that the 2nd defendant attempted to sell the property, thereby, the Trial Court has granted an order of attachment before the Judgment on 06.07.1987, however, the 2nd defendant remained ex parte. To compliance of the said attachment, tom tom was beat on 07.07.1987 intimating 10/26 https://www.mhc.tn.gov.in/judis ( Uploaded on: 30/09/2025 01:17:38 pm ) S.A.No.1339 of 2023 the public about the order of attachment by the bailiff over the suit lands belong to the 2nd defendant by complying with due formalities and he sought for two witnesses in the Village. At that time, the plaintiff Ramu Gounder came forward to scribe as a witness along with other witness. In fact, Ramu Gounder and Sarangabani are the adjacent land owners. Therefore, the plaintiff Ramu Gounder knew about the attachment of the suit lands and with an intention to grab the property cultivating with the 2nd defendant. The plaintiff created a Sale Deed by using the antedated stamp papers purchased from far away places. With a view to defeat the 1st defendants claim, he created antedated Sale Deed on 03.06.1987 prior to the attachment. But, the fact remains that the sale Deed was registered on 21.07.1987 nearly about 48 days from the alleged date of execution. Therefore, on the date of attachment, there was no valid Sale Deed on 07.07.1987 stands in the name of the plaintiff and thus, the facts were rightly appreciated by the First Appellate Court, even through the Trial Judge failed to take note of the said fact. Further, the learned counsel would submit that the 1st defendant secured Decree in the suit in O.S.No.546 of 1987 against the 2 nd defendant. Therefore, he filed E.P.No.467 of 1989 in order to realize the money claim and brought the sale of the attached property in the public auction. Further, he obtained leave from the Court and participated in the auction as highest bidder and purchased the property on 02.06.1989. Objecting the same, 11/26 https://www.mhc.tn.gov.in/judis ( Uploaded on: 30/09/2025 01:17:38 pm ) S.A.No.1339 of 2023 the plaintiff filed a claim petition in E.A.No.415 of 1989 and the said petition was dismissed on 12.04.1989 holding that it is a belated claim. Against which, they did not preferred any revision. On the other hand, they came forward with the present suit, which is not maintainable and the same was rightly appreciated by the First Appellate Court which needs no interference. Further, he would also submit that the antedated stamp papers purchased by the plaintiff also rightly taken note of by the First Appellate Judge, though the Trial Court failed to appreciate the same, thereby, the findings rendered by the First Appellate Court with regard to the conduct of the plaintiff as such is maintainable, needs no interference. Even in the appeal proceedings, the plaintiff has not obtained any Stay. Therefore, with the help of Revenue Officials, the possession of the appellant/1st defendant was delivered through Court Amin on 21.06.2023. Therefore, the findings rendered by the First Appellate Court is reasoned one and prayed for dismissal of the appeal as no merit.
12.The main point that has to be decided is whether the attachment prevails over the sale stands in the name of the original Plaintiff Ramu Gounder?. As per the contentions of the plaintiff, the plaintiff purchased the 12/26 https://www.mhc.tn.gov.in/judis ( Uploaded on: 30/09/2025 01:17:38 pm ) S.A.No.1339 of 2023 property in order to discharge the loans and the original owner the 2nd defendant offered to sell the property for a valid consideration and the Sale Deed was executed on 03.06.1987. On the date itself, the money debts of the 2nd defendant was discharged. To that effect, he produced Receipts as well as other records on the side of the plaintiff and marked Ex.A.2 and Ex.A.3 before the Trial Court. Immediately after the said transaction, the 2nd defendant left the native place for selling cattle to other places and the document was registered on 21.07.1987 nearly about 48 days later. In the meanwhile, the 1st defendant filed a suit in O.S.No.546 of 1987 before the learned District Munsif, Arni against the 2nd defendant for money claim along with Interlocutory Application to attach the property belongs to the 2nd defendant (the suit property herein) before Judgment on 06.07.1987. On the next day on 07.07.1987, the property was attached through Court Amin. Therefore, the 1st defendant contended that since the Sale Deed was not registered immediately after the alleged execution, there was no valid sale Deed on the date of attachment, thereby, the registration of the Sale Deed dated 21.07.1987 would not bind him and the sale effects only from the date of 21.07.1987, thereby his attachment prevail over the same. Based on the Decree, he brought the property for sale and after obtaining leave, he purchased the property, thereby claimed that he is the absolute owner of the suit property. At this juncture, the learned counsel for the appellant relied the Judgment of the 13/26 https://www.mhc.tn.gov.in/judis ( Uploaded on: 30/09/2025 01:17:38 pm ) S.A.No.1339 of 2023 Supreme Court in Hamda Ammal vs Avadiappa Pathar and 3 others [(1991) 1 Supreme Court Case 715], wherein at Paras 9 to 14, it is held as follows:
“9.e...Section 47 of the Registration Act once registration is effected, the title under the Sale Deed relates back to the date of its execution and, therefore, though registration was completed on November 30, 1964 the transferee's title under the Sale Deed related back to the date of its execution ....
...
11.In Vannarakkal Kallalathil Sreedharan v.
Chandramaath Balak-rishnan' a bench of two Judges considered a question identical to the question raised before us. The question was whether the sale prevailed over the attachment. The facts were that 80 cents of land were agreed to be sold in favour of the appellant under an agreement dated October 9, 1978. Before the sale deed was executed, a third party in execution of a decree got the property attached on November 16, 1978. The sale deed was executed on November 23, 1978. On the above facts it was held as under: (SCC p. 292, para 5) "We may first draw attention to some of the relevant statutory provisions bearing on the question. Order XXXVIII Rule 10 of the Code of Civil Procedure provides that attachment before judgment shall not affect the rights existing prior to the attachment of persons not parties to the suit. Under Section 40 of the Transfer of Property Act, a purchaser under a contract of sale of land is entitled to the benefit of an obligation arising out of that contract and it provides that the obligation may be enforced inter alia against a transferee with notice. Section 91 of the Trusts Act also recognises this principle that the transferee with notice of an existing contract of which specific performance can be enforced must hold the property for the benefit of the party to the contract. These are equitable rights though not amounting to interest in immovable property within the meaning of Section 54 of the Transfer of Property Act which declares that a contract of sale does not create an interest in the property. On this line of reasoning it has been held by the Madras High Court that the purchaser of (sic under) an antecedent agree ment gets good title despite 14/26 https://www.mhc.tn.gov.in/judis ( Uploaded on: 30/09/2025 01:17:38 pm ) S.A.No.1339 of 2023 attachment."
Their Lordships then considered that the same view has been taken by the Bombay and Calcutta High Courts. The view taken by Punjab and Haryana High court in Mohinder Singh v. Nanak Singh was ovrrulled. It was observed as under: (SCC pp. 293-94, para 9) "In our opinion, the view taken by the High Bombay, Calcutta and Travancore-Cochin in the aforesaid cases agreement for sale indeed creates an obligation attached to the appears to be reasonable and could be accepted as correct. The attach only the right, title and interest of the judgment- debtor, the ownership of property and since the attaching creditor is entitled to attachment cannot be free from the obligations incurred under the the attaching creditor, but if the subsequent conveyance is in pur-contract for sale. Section 64 CPC no doubt was intended to protect suance of an agreement for sale which was before the attachment. the contractual obligation arising therefrom must be allowed to prevail over the rights of the attaching creditor. The rights of the attaching creditor shall not be allowed to override the contractual obligation arising from an antecedent agreement for sale of the tion and proceed to bring the property to sale as if it remained the that obliga absolute property of the judgment- debtor. We cannot, therefore, agree with the view taken by the Punjab and Haryana High Court in Mohinder Singh case"
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 attach-ment before judgment made subsequent to such agreement for sale. We do not want to express any opinion with regard to the case of an agree-ment 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.
13. Learned counsel for the respondent also placed reliance on Tilakdhari Singh v. Gour Narain' and Raja Ram v. Girraj Kishore in sup-port of his contention. The above 15/26 https://www.mhc.tn.gov.in/judis ( Uploaded on: 30/09/2025 01:17:38 pm ) S.A.No.1339 of 2023 authorities no doubt support the con-tention of the learned counsel for the respondent but the above Patna case has been dissented in a later Patna case Faiyazuddin Khan v.Mst.Zahur Bibi. In the later came the facts were that deed of himolka in one thun teen dwave Pat te Farbenv. Mu certain which reqtration, bot before the deed wat regiered the property and the docu ment was subsequently registered it was held that the docenil prevailed in the attachment at the document when registered took effect from the date of execution.
14.The only reason given in the above cases relied on by the order for the purposes of giving effed to the transfer sought to be made attachment order has been made. Atry act done after the attachment tive unless it was registered and the right to have it registered was a right must be held to be ineffective in law. The sale deed could not be opera-denied to the parties to the sale by reason of attachment. We have already given detailed reasons for the view taken by us and the above Cases taking a contrary view do not lay down the correct law.”
13.The learned counsel for the appellant would argue that the Sale Deed was executed on 03.06.1987 itself though it was registered on 21.07.1987. It related back to the execution of the Sale Deed and attachment was only made on 07.07.1987, that is after the execution of the Sale Deed, thereby, the alleged attachment would not bind the plaintiff. By relying the above ratio as well as the fact reveals that the document was executed on 03.06.1987, thereafter, attachment was made on 07.07.1987, but the document was registered on 21.07.1987. Section 47 of the Registration Act states as follows:
47. Time from which registered document operates.
- A registered document shall operate from the time from which 16/26 https://www.mhc.tn.gov.in/judis ( Uploaded on: 30/09/2025 01:17:38 pm ) S.A.No.1339 of 2023 it would have commenced to operate if no registration thereof had been required or made, and not from the time of its registration.” The facts as well as the ratio laid down which clearly emphasise that the Sale Deed executed prior to the attachment can be registered thereafter and also it made clear that after the registration, it will relate back to the date of the execution of the Sale Deed, as rightly pointed by the appellant/plaintiff. However, the learned counsel for the 1st respondent would argue that by colluding with the 2nd defendant in order to defraud his claim, the alleged Sale Deed was executed by purchasing Stamp papers from various places and the same has not been established, thereby the Trial Court held that the Sale Deed was executed with a malafide intention. But, before the Trial Court, the plaintiff proved that the 2nd defendant borrowed loan from various persons, and some Deeds have been executed to discharge all the debts including the 1 st defendant, who is the Financier by profession and the 2nd defendant offered to sell the property. To that effect, the plaintiff has relied Ex.A.2. On perusal of the same, all the proceedings were initiated in the year 1981, prior to the execution of the Sale Deed. The other execution of the proceedings were pending prior to the Sale Deed and the same was rightly appreciated by the Trial Judge elaborately while discussing on the issue Nos.1 and 2 which need no 17/26 https://www.mhc.tn.gov.in/judis ( Uploaded on: 30/09/2025 01:17:38 pm ) S.A.No.1339 of 2023 interference by this Court. Indeed, the plaintiff has also proved that the 1st defendant was a Financier by profession and having came to know about the execution of the Sale Deed on 03.06.1987 through a document Writer PW4, thereby he filed a suit on 06.07.1987 and filed an interim application, as if the 2nd defendant attempted to sell the property. In both the proceedings, the 2 nd defendant has also remained ex parte. As rightly pointed out by the learned counsel for the plaintiff that already the property was sold, the entire sale transaction was completely on 03.07.1987 itself. Therefore, the alleged allegation as if the 2nd defendant attempted to convey the alienated property, as such, is not available in this case, even the said order of attachment is also not valid in the eye of law. To that effect, the ratio laid down in (1991) 1 SCC 715 = 1990 TLNL 33 is squarely applicable to the facts of this case. But, the First Appellate Judge failed to appreciate the same. The plaintiff clearly proved that the Sale Deed was not executed with a malafide intention to defraud the 1st defendant and also proved that as a bonafide purchaser, he purchased the property for a valid consideration. Besides, he also established that the 1st defendant who is the money lender also a Court bird and in order to grab the property he filed a suit and attachment of the property as discussed above.
14.Per contra, the learned counsel for the 1st defendant took a defence that 18/26 https://www.mhc.tn.gov.in/judis ( Uploaded on: 30/09/2025 01:17:38 pm ) S.A.No.1339 of 2023 while attaching the property through the Bailiff, the plaintiff was one of the witnesses and he knew very well aware of the attachment proceedings, thereby, they purchased ante-dated stamp papers and executed a registered Sale Deed on 21.07.1987 after the attachment over the properties. It is an admitted fact that the plaintiff is one of the attestors of the alleged Tom Tom mahazar and knew the fact. According to him, he was not aware of the contents of the documents while affixing his signature. The Bailiff was examined on the side of the 1st defendant as DW2, but his evidence is not clarified that the document was read over by the witnesses. It is the settled proposition that mere contents is not sufficient, the defendants must establish that the witness knows the contents of the documents.
15.In support of their contentions, the learned counsel has relied upon the following Judgments:
(1) Kaliaperumal v. Rajagopal and another
[(2009) 4 Supreme Court Cases 193]
(2) Bhaskar Laxman Jadhav and others v. Karamveer
Kakasaheb Wagh Education Society and others
[(2013) 11 Supreme Court Cases 531]
(3) Municipal Committee, Hoshiarpur v. Punjab State
Electricity Board and others
[(2010) 13 Supreme Court Cases 216]
19/26
https://www.mhc.tn.gov.in/judis ( Uploaded on: 30/09/2025 01:17:38 pm )
S.A.No.1339 of 2023
(4) Ramjas Foundation and another v. Union of India and others
[(2010) 14 Supreme Court Cases 38].
16.In the case in hand, there is no such evidence and it is also probabilized that he is a Village person standing nearby and he is also belonging to the same Village made to sign. However, the plaintiff proved that after the execution of the Sale Deed only, the suit and the attachment proceedings were initiated by the 1stdefendant. Therefore, the entire findings and the appreciation of the facts made by the Trial Judge to that effect, as such, is maintainable, needs no interference. As the Trial Court has appreciated the legal proposition as well as the facts. But, the findings of the First Appellate Judge are perverse and liable to be set aside. The Substantial Question of Laws 1 and 2 are answered accordingly.
17.The learned counsel for the plaintiff would argue that under Order 21 Rule 58A of the Code of Civil Procedure, the order of attachment passed by the Court is to be communicated to the Sub Registrar Office, without which, the attachment as such is not valid one. To that effect, he relied the Judgment of this Court in Sri Krishna Chit Funds (Sattur Private Limited), Sattur having its office at Door No.19, Pillaiyar Koil Street, Sattur Town and Taluk through its Managing Director Tmt.R.Umayal v. R.S. Pillai and 20/26 https://www.mhc.tn.gov.in/judis ( Uploaded on: 30/09/2025 01:17:38 pm ) S.A.No.1339 of 2023 another [2000-2-L.W.758], wherein at paras 8 to 12, it is held as follows:
8.I have already stated that except the oral evidence of P.W.I, no one was examined on the side of the respondents in order to prove the compliance of Order 21, Rule 54 (2), C.P.C.
Regarding the communication of the order of attachment to the Registering Officer, the appellant as P.W.I has deposed thus:-
Though it is seen from Ex.R-1 that the order of attachment has been communicated to the Sub-Registrar's Office, Sattur as per Ex.P.11 the said order has been returned to Sub Court, Srivilliputhur stating that the order does not contain Ward No.. extent, value of the schedule mentioned property. With reference to the details asked for by the Office of the Sub Registrar, Sattur under EX.P.11, admittedly there is no evidence before the Sub Court whether those particulars have been furnished to the Sub Registrar's Office, Sattur or not. In this regard, it is relevant to refer the observation made by the learned Subordinate Judge at paragraph 12 of his order:-
...
I have already referred to the evidence of P.W.I as well as the communication of the Sub Registrar, Sattur under Ex.P.11. When the Madras amendment Rules 58-A and 11-B specifically say that the order of attachment has to be communicated to the Registering Officer, it is clear from the evidence of P.W.1 coupled with Ex.P-11 communication from the Office of the Sub Registrar to Sub Court and in the absence of any information regarding furnishing of particulars called for and resubmitting the order of attachment to the office of the Sub-Registrar, I hold that Order 21, Rule 58-A and Order 38, Rule 11-B have not been complied with, only on receipt of proper Order of attachment, it would be possible for the Sub Registrar to make necessary entries in their registers in respect of the property in question and if any one who deals with the property, makes an application requesting for encumberance certificate, the order of attachment will be noted in such certificate, it is clear from the particulars furnished that though the subordinate Judge has passed an order of attachment, the same has not been communicated to the Registering Officer concerned.
9.Mr. G. Subramaniam, learned senior counsel for the 21/26 https://www.mhc.tn.gov.in/judis ( Uploaded on: 30/09/2025 01:17:38 pm ) S.A.No.1339 of 2023 respondents, would state that there-is no such plea, namely, the attachment is void. He also contended that even other-wise for the omission committed by the Court the party cannot be penalised. Regarding failure of compliance of Order 21, Rule 58-A and Order 38, Rule 11-B it has been specifically pleaded by the claimant/appellant herein in E.A.No. 38 of 1999 and he also deposed before the court as P.W.I. Further, it is clear that in view of the omission of material particulars in the order of attachment, the office of the Sub Registrar, Sattur returned the order under EX.P-11 with a request to furnish all the details. In such a circumstance, it is the duty of the Court to communicate the order of attachment with relevant and correct particulars namely survey number, door number, extent, value of the property etc., as requested by the office of the Sub Registrar to enable them to make necessary entries in their registers. In such a circumstance, I reject the contention raised by the learned senior counsel for the respondents.
10. Now I shall consider the various decisions relied on by both sides. In Nagarathina Amma v. Syndicate Bank, etc., 1994 (2) L.W. 62, the Division, Bench of this Court had an occasion to consider the very same provisions as well as rules framed on the Original Side of this Court. In that case, the Division Bench based on the report of the Master of the Court has concluded that the order of attachment dated 12.8.87 was not communicated either to the competent court or to the concerned Sub Registrar within those jurisdiction the property situates. After noting the fact that the Sheriff's office are not able to communicate the order of attachment either to the subordinate courts or Registrar or Sub Registrar, the Division Bench has issued certain directions for compliance of the rules strictly. It is clear from the said decision that after insertion of Rule 58-A duty is cast on the concerned court to communicate the order to the concerned office of the Sub Registrar.
11 In Muthiah Chetti v. Palaniappa Chetti, AIR 1928 P.C. 139, Their Lordships have held that merely passing an order of attachment is not enough. Their Lordships have also held that no property can be declared to be attached unless firstly order for attachment has been issued; and secondly, in execution of that order the other things prescribed by the rules in the Code have been done. It is clear from the said decision 22/26 https://www.mhc.tn.gov.in/judis ( Uploaded on: 30/09/2025 01:17:38 pm ) S.A.No.1339 of 2023 that mere passing of an order is not sufficient and the other rules have to be strictly complied with in order to enforce the order of attachment.
12. In Keshvlal v. Bibi Soghra, AIR 1934 Pat. 619, the Division Bench has held that mere order to make an attachment does not amount to an actual attachment, and that the attachment is not complete until it has been effected in the manner prescribed by the rules.”
18.In the case in hand, there is no material evidence on the side of the 1st defendant that the said order of attachment was communicated to the Sub Registrar office. Therefore, in the encumbrance, the order of attachment would not found. Therefore, the plaintiff might not have known about attachment over the properties. So also, the alleged attachment was not valid. Therefore, mere passing of Order of Attachment by the Court is not sufficient and the other Rules strictly to be complied with in order to enforce the Order of Attachment by complying with Order 21 Rule 58A of CPC. Therefore, by obtaining ex parte order of attachment, the 1st defendant brought the property for sale and participated in the Auction and took possession of the property also, which is not valid under Law. The alleged Sale and also purchase made by him through Auction proceedings are also invalid and would not bind the plaintiff. Accordingly, the Substantial Question of Law No.3 is answered.
19.Therefore, both the factual and legal aspects have been rightly 23/26 https://www.mhc.tn.gov.in/judis ( Uploaded on: 30/09/2025 01:17:38 pm ) S.A.No.1339 of 2023 appreciated by the Trial Judge, as such, needs no interference, however, the findings rendered by the First Appellate Judge is improper and illegal and it is liable to be set aside. Therefore, the findings of the First Appellate Court is set aside. Accordingly, this Second Appeal is allowed. The Suit is decreed as prayed for.
Pending proceedings, the 1st defendant claimed that he took possession of the property and the alleged possession said to be taken by the 1st defendant, as such, is illegal and liable to be set aside, for the reason that the alleged attachment as well as the auction purchase made by the 1st defendant is illegal and non est in the eye of Law. In consequence thereof, the 1st defendant took possession of the property which is also not valid and illegal and the fact also proves that ever since from the date of purchase, the 1st defendant is in possession of the property. Therefore, the plaintiff is directed to restore the property to the original possession with the help of law people, if they are really dispossessed, within a period of two weeks from the date of receipt of a copy of this Judgment. No costs. Consequently, connected Miscellaneous Petition is closed.
02.09.2025
Speaking / Non Speaking order
Neutral Citation : Yes/No
Index :Yes/No
mps
24/26
https://www.mhc.tn.gov.in/judis ( Uploaded on: 30/09/2025 01:17:38 pm )
S.A.No.1339 of 2023
To
1.The Subordinate Judge,
Arni.
2.The District Munsif,
Arni
3.The Section Officer,
VR Section,
Madras High Court.
T.V.THAMILSELVI, J.
mps
S.A.No.1339 of 2013
and
C.M.P.No.4180 of 2020
25/26
https://www.mhc.tn.gov.in/judis ( Uploaded on: 30/09/2025 01:17:38 pm )
S.A.No.1339 of 2023
02.09.2025
26/26
https://www.mhc.tn.gov.in/judis ( Uploaded on: 30/09/2025 01:17:38 pm )