Madras High Court
S.S.Karthikeyan vs Sivasalam on 30 September, 2008
Author: V.Dhanapalan
Bench: V.Dhanapalan
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 30.09.2008 CORAM: THE HONOURABLE MR.JUSTICE V.DHANAPALAN C.R.P.(NPD) No.2871 OF 2008 S.S.Karthikeyan ... Petitioner vs. 1. Sivasalam 2. K.Venkatachalam ... Respondents Civil Revision Petition filed under Section 115 C.P.C. against the fair and final order dated 06.08.2008 made in E.A.No.243 of 2008 in E.P.No.52 of 1997 in O.S.No.346 of 1992 on the file of the I Additional Sub Court, Erode. For Petitioner : Mr.T.Murugamanickam For Respondents : Mr.N.Manokaran O R D E R
This revision is preferred against the fair and final order dated 06.08.2008 made in E.A.No.243 of 2008 in E.P.No.52 of 1997 in O.S.No.346 of 1992 on the file of the I Additional Sub Court, Erode.
2. The portrayal and parodying of the case of the revision petitioner, as stood exposited from the affidavit would run thus:
The properties originally belonged to one Ramayammal; she along with her son executed a Power of Attorney deed in favour of M.Kavundaiappa Gounder; the power holder sold the petition mentioned property to one Amrithdevi Pandey and another under a sale deed dated 25.07.2000; thereafter, the said Amrithdevi Pandey and others through their Power of Attorney, A.Sivakumar sold the said properties in his favour under a registered sale deed dated 15.04.2004. It is the further case of the petitioner that he purchased the property after proper verification of the Encumbrance Certificate for a period of 18 years. According to the petitioner, he being a bonafide purchaser of the properties, without notice to him about the transactions, the properties have been sold. Hence, he has come up before this court for stay of the sale proceedings and to set aside the order passed by the Execution Court.
3. Per contra, refuting the averments of the revision petitioner in the affidavit, the first respondent has filed counter, the gist and kernel of it would run thus:
(i) The first respondent filed O.S.No.346 of 1992 before the Principal Sub-Court, Erode against the 2nd respondent for recovery of a sum of Rs.1,36,000/- and that the suit was decreed on merits on 25.09.1996. Pending suit, the first respondent filed a petition for attachment before judgment in respect of the property in D.No.15, Kothukkaranpudur, Suriyanpalayam and obtained an order of attachment. The said order of attachment before judgment and the decree dated 25.09.1996 has attained finality and in view of the order of attachment, the first respondent filed E.P.No.52 of 2007 to bring the attached property for sale.
(ii) One Karuppanna Gounder was the original owner of half of the property, that the other half share belonged to the 2nd respondent as his separate property; one Ramayammal, wife of Karuppanna Gounder, her son the 2nd respondent herein for himself and also on behalf of his two minor sons as guardian for the minors had executed a power of attorney in favour of one Kavundaiayyppa Gounder, who in turn, sold the property to one Amrithdevi Pandey under a registered Sale Deed dated 25.07.2000; the said Amrithdevi Pandey had purchased the property under attachment in O.S.No.346 of 1992 and that she had executed sale deed in favour of the petitioner herein on 15.04.2004 knowing fully well about the order of attachment before judgment passed in O.S.No.346 of 1992.
(iii) According to the first respondent, the sale transactions have been entered into at the connivance of the petitioner, his vendor Amirthdevi Pandey and the 2nd respondent with an intention to defraud his claim in the suit. Subsequent to the order of attachment, the vendor of the petitioner had purchased the property on 25.07.2000; thereafter, the 2nd respondent has instigated his mother and sisters to file a suit for partition and also sought for stay of the execution proceedings by filing a suit in O.S.No.366 of 2000 before the Sub Court, Erode and the said suit was dismissed for default.
(iv) Again to stall the execution proceedings in E.P.No.652 of 1997 in O.S.No.346 of 1992, the 2nd respondent instigated his minor sons to file a suit for partition through his wife as next friend for the minor sons in O.S.No.440 of 2003 before the Sub-Court, Erode and the said suit was dismissed for default. The plaintiffs therein filed a petition to restore the suit and the said petition was also dismissed; now, both the suits filed at the instigation of the 2nd respondent have attained finality. After the dismissal of the said suits, the 2nd respondent herein instigated his minor sons to file a claim petition in E.A.No.189 of 2008 by suppressing the dismissal of the suit in O.S.No.440 of 2003 and the first respondent has also filed a counter statement narrating the events and the factum of the sale deed dated 25.07.2000. Thereafter, the petitioner who has purchased the property subsequent to the order of attachment, has filed E.A.No.242 of 2008 under Order 21 Rule 58 CPC alleging that he is the bonafide purchaser of the property under attachment.
(v) Pending claim petition in E.A.No.242 of 2008, the petitioner herein has filed a petition for stay in E.A.No.243 of 2008 and it was opposed on various grounds stating that the petitioner has purchased the property subsequent to the order of attachment and that the sale itself is void in law.
(vi) According to the first respondent, when the claim petition is not maintainable in law, the petitioner is not entitled to get an order of stay of execution proceedings; the stay petition itself is a diabolical plan of the judgment debtor to deny the decree holder the fruits of the decree obtained by him. He further submitted that the petitioner is a transferee after an order of attachment before judgment and that he has no locus standi to maintain the claim petition; therefore, an order of stay would cause prejudice to him, especially when the case is pending from the year 1992 and he prayed for dismissal of the revision petition.
4. Heard Mr.T.Murugamanickam, learned counsel for the revision petitioner and Mr.N.Manokaran, learned counsel for the respondents.
5. Learned counsel for the revision petitioner would pithily submit that the court below ought to have exercised the jurisdiction vested in it and allowed the application, considering that the petitioner's application under Order 21 Rule 58 C.P.C, in which the title of the petitioner and the right of the decree holder to bring the petition mentioned properties is pending before the same court. He would also submit that the court below ought to have seen that the petitioner is a bona fide purchaser for value and therefore, the presumption that he is colluding with the judgment debtor is unwarranted and not based on any evidence on record. It is also his contention that the court below failed to see that the order of attachment over the petition mentioned property was not reflected in the Encumbrance Certificate applied for by the petitioner when he purchased the petition mentioned property.
5a. To support his case, learned counsel for the petitioner has placed reliance on the judgments rendered by this Court, relevant portion of which is extracted here under:
(a) 1997 (I) MLJ 115 (P.Duraisamy vs. Sri Mahalakshmi Finance) "3. When a claim petition has been filed claiming right in the property, naturally, till such dispute is settled, stay of further proceedings in the E.P. Has to be made. But in this case the lower court has almost given a finding in the stay petition which finding is necessary for the disposal of the claim petition. Keeping the claim petition pending, it is not proper for the court below to dismiss the stay petition for the reasons that would be relevant for the dismissal of the claim petition itself. "
(b) 2000 (II) CTC 524 (Sri Krishna Chit Funds (Sattur Private Limited), Sattur) "23. To sum up it is clear that both the Courts below failed to take note of Ex.P11 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.
...
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.117 of 1997 in O.S.No.18 of 1997 on the file of Subordinate Judge, Sivakasi."
6. Per contra, learned counsel for the respondents would submit that subsequent to the order of attachment, the vendor of the petitioner herein had purchased the property on 25.07.2000 and pending claim petition in E.A.No.242 of 2008, the petitioner has filed a petition for stay in E.A.No.243 of 2008. Learned counsel would contend that when the claim petition is not maintainable in law, the petitioner is not entitled to get an order of stay of execution proceedings and that the stay petition itself is a diabolical plan of the judgment debtor to deny the decree holder the fruits of the decree obtained by him. It is his further contention that the petitioner is a transferee after an order of attachment before judgment and that he has no locus standi to maintain the claim petition. In all, he prayed for dismissal of the revision.
6a. Learned counsel for the respondents, in support of his contentions has relied on a decision of the Honourable Supreme Court reported in (2003) 8 SCC 289 in the case of Ravinder Kaur vs. Ashok Kumar and another. Para 22 of the said judgment is reproduced hereunder :
"All these facts apart, we notice that nowhere in the petition the respondent tenants claim to be in possession of any shop other than Shop No.3 in regard to which they have suffered an eviction order. It is not their case that they are also in possession of some other property in regard to which there is no eviction order but the landlord is trying to take possession in these execution proceedings. We have specifically asked the learned counsel appearing for the respondents that apart from Shop No.3 belonging to the appellant, are the respondents in possession of any part of the property bearing No.EK 172/2 situated at Chowk Panjeer, Jalandhar. The learned counsel was not able to give any satisfactory reply to our question which would only mean that the respondents are not in possession of any other property other than Shop No.3 leased out to them in the above mentioned property belonging to the appellant. That is also why they prayed for restoration of possession. Therefore, raising a dispute in regard to the description or identity of the suit schedule property is only a bogey to delay the eviction by the abuse of the process of court. Courts of law should be careful enough to see through such diabolical plans of the judgment-debtors to deny the decree-holders the fruits of the decree obtained by them. These type of errors on the part of the judicial forums only encourage frivolous and cantankerous litigations causing law's delay and bringing bad name to the judicial system."
6b. Learned counsel for the respondents has relied on one another judgment of the Supreme Court reported in (2008) 7 SCC 144 in the case of Usha Sinha vs. Dina Ram and others, wherein, in para 23, it was held as under:
"It is thus settled law that a purchaser of suit property during the pendency of litigation has no right to resist or obstruct execution of decree passed by a competent court. The doctrine of "lis pendens" prohibits a party from dealing with the property which is the subject-matter of suit. "Lis pendens" itself is treated as constructive notice to a purchaser that he is bound by a decree to be entered in the pending suit. Rule 102, therefore, clarifies that there should not be resistance or obstruction by a transferee pendente lite. It declares that if the resistance is caused or obstruction is offered by a transferee pendente lite of the judgment-debtor, he cannot seek benefit of Rules 98 or 100 of Order 21."
7. I have given careful consideration to the submissions made by the learned counsel on either side and perused the materials available on record.
8. Before proceeding to analyse the case on hand, it would be worth referring to Rule 58 and Rule 58-A under Order 21 of the Code of Civil Procedure:
"Rule 58: 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 therein contained:
Provided that no such claim or objection shall be entertained -
(a) where, before the claim is preferred or objection is made, the property attached has already been sold; or
(b) where the Court considers that the claim or objection was designedly or unnecessarily delayed.
58-A. Order of attachment to be communicated to the Registering Officer: Any order of attachment passed under Rule 54 of this Order raising the attachment by removal, determination or release passed under Rules 55, 57 or 58 of this Order, shall be communicated to the Registering Officer within the local limits of whose jurisdiction the whole or any part of the immovable property comprised in such order is situate. "
9. It is seen that the petitioner has purchased the property in question by way of a registered Sale Deed dated 25.07.2000. The petitioner claims that he is the bonafide purchaser of the said property and that he purchased the same after proper verification of Encumbrance Certificate for a period of 18 years. Though the respondents have contended that the petitioner has colluded with the judgment debtor and has filed a stay petition in E.A.No.242 of 2008 to deny the decree holder the fruits of the decree obtained by him, mere presumption of the same is not sufficient while coming to a conclusion. While looking into the matter, this court feels that there must be sufficient evidence on record to show that the petitioner is a bonafide purchaser and that there is no collusion between him and the judgment debtor.
10. Law is well settled that till a dispute is finally adjudicated and settled, stay of further proceedings in the Execution Petition has to made, provided that the claim petition is filed by a bonafide person, which is necessary for the disposal of the claim petition and in such circumstances, the court ought to have decided the stay petition taking into consideration that the order of attachment over the petition mentioned property is based on the Encumbrance Certificate; if it is not reflected, then the court has to consider the matter by taking into account the material evidence. The provision under Section 58 of Order 21 C.P.C. makes it very clear that where any claim is preferred 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 contained therein. Also, the provisions make clear that this objection is subject to certain conditions. More so, the amended Rule 58-A also provides that the order of attachment as well as the order raising the attachment by removal, determination or removal passed under Rule 55 shall be communicated to the Registering Officer within the local limits of whose jurisdiction the whole or any part of the immovable property comprised in such order is situate. The above provisions have to be made applicable to the case on hand, but the court below, without looking into the provisions and records, particularly the Encumbrance Certificate, has simply rejected the said petition.
11. In view of the facts and circumstances of the case, this court is of the opinion that the court below has not applied its mind in deciding the application for stay and it is necessary for the parties to let in proper evidence to decide the issue and in that view of the matter, the order of the Trial court dated 06.08.2008 made in E.A.No.243 of 2008 in E.P.No.52 of 1997 in O.S.No.346 of 1992 is set aside and the matter is remitted to the court below for fresh consideration after taking into account the evidence let in by both the parties. Resultantly, the Civil Revision Petition is allowed on the above terms with a direction to the Court below to dispose of the matter within a period of eight (8) weeks from the date of receipt of a copy of this order. No costs. Consequently, connected M.P.No.1 of 2008 is closed.
abe To:
The I Additional Sub Court, Erode