Madras High Court
Sivasamy vs Rajavannian And Valliammal on 23 February, 2004
JUDGMENT S. Sardar Zackria Hussain, J.
1. The Second defendant in the suit is the appellant. The first respondent herein filed the suit O.S. No. 1181 of 1983 in the District Munsif Court, Vridhachalam on 18.10.1983 for declaration in respect of item Nos.1 to 8 of the suit properties and also for permanent injunction against the second defendant, viz., the appellant herein from bringing the suit properties for sale in execution of the decree in O.S. No. 1902 of 1974 and as per the amended plaint, he also sought the relief of delivery of possession of the suit properties and for future mesne profits from 2.7.1985.
2. The parties are described as per their rankings in the suit.
3. In the plaint it is stated that the suit properties belonged to the first defendant, viz., the second respondent herein and the plaintiff purchased the same as per registered sale deed dated 26.2.1975 for Rs.11,000/- and thereafter he has been in possession and enjoyment of the suit properties. The part of sale consideration was utilised to discharge the debts incurred by the husband of the first defendant, viz., the second respondent herein and another part was already received and spent by the first defendant to meet the funeral bill of her husband's demise. The plaintiff was not aware of the other loan amounts payable by the first defendant or her husband, despite the bona fide enquires made by him prior to his purchase. The first defendant also owns other immovable properties even after sale of the suit properties to the plaintiff. The second defendant obtained a simple money decree against the first defendant on 11.3.1982 in O.S. No. 1902 of 1974 in the District Munsif Court, Vridhachalam and the plaintiff came to know only on 19.9.1983. Therefore, originally the plaint was filed for declaration and permanent injunction as set out above and thereafter, he amended the plaint seeking relief of possession and mesne profits stating that the second defendant, in execution of the decree in O.S. No. 1902 of 1974 and during the pendency of this suit purchased the suit properties in Court auction and also taken delivery through Court on 2.7.1985. The plaintiff is not a party to the proceedings in O.S. No. 1902 of 1974 and therefore, the plaintiff is a purchaser for value and without notice of the claim of the second defendant.
4. The first defendant remained ex parte. The suit was resisted by the second defendant denying the averments set out in the plaint and further stating that the purchase of the suit properties by the plaintiff from the first defendant is untrue. The suit properties belonged to the first defendant's husband Ayyathurai Padayachi and he obtained a loan of Rs. 400/- on 21.8.1972 from the second defendant executing a promissory note. Ayyathurai Padayachi also executed a promissory note on 27.9.1972 for Rs. 300/- in favour of Chella Padayachi and another promissory note on 20.8.1973 for Rs.400/- in favour of Ramalinga Padayachi and the said Chella Padayachi and Ramalinga Padayachi had assigned the said promissory notes in favour of the second defendant. The second defendant caused lawyer notice demanding amount due on promissory note executed in his favour and also the amount due on the promissory notes which have been assigned to him. The first defendant though sent reply and not made any payment, the second defendant filed O.S. No. 1902 of 1974 in Vridhachalam District Munsif Court and though the first defendant contested the suit by engaging advocate, the suit was dismissed under the Debt Relief Act, 40/78, since the suit claim was less than Rs.500/-. After the Act 40/79 came into effect, the suit was restored and was decreed on 11.3.1982. All these facts are known to the plaintiff as well the attachment petition filed in O.S. No. 1902 of 1974. The plaintiff is related to the first defendant and to defeat the second defendant from obtaining the fruits of the decree in O.S. No. 1902 of 1974, the plaintiff has filed this suit. The plaintiff is not a bona fide purchaser for value. The plaintiff ought to have filed claim petition under Order 21 Rule 58 C.P.C. in O.S. No. 1902 of 1974 to raise the attachment in respect of the suit properties. The possession of the suit properties continue with the first defendant. The second defendant brought the suit properties in Court auction sale after attaching to realise the amount decreed in O.S. No. 1902 of 1974 and he purchased the item 5 of the suit properties on 22.2.1984 for Rs. 2,025/-. Though the plaintiff is aware of the same he has not taken any steps to set aside the sale. Since the plaintiff and the first defendant colluded together and brought the sale deed in favour of the plaintiff relating to the suit properties to defraud the decree amount to the second defendant and during the pendency of the Ordinance 1/75 and 8/73; and Act 40/78 and 40/79, the said sale is invalid. In the additional written statement, the second defendant has stated that he has purchased item 5 of the suit properties comprised in resurvey No. 512/14 measuring 1.28 acres in the Court auction sale in the execution proceedings in O.S. No. 1902 of 1974 and also obtained possession in June, 1985 and therefore, in respect of the said item of the suit properties, the plaintiff is not entitled to any relief.
5. Before the District Munsif, the plaintiff examined himself as P.W.1, besides P.Ws.2 and 3 and marked Exs.A-1 to A-26. The second defendant examined himself as D.W.1, besides D.Ws.2 to 5 and also marked Exs.B-1 to B-13. The trial Court considering such evidence adduced on either side in answering the issues and the additional issues recorded findings that the purchase of the suit properties under the sale deed Ex.A-1 dated 26.2.1975 by the plaintiff from the first defendant is not valid, since the sale came into existence only to defraud the creditors, viz., the second defendant and D.W.4, Srinivasan and such sale is also not maintainable in view of the fact that the plaintiff purchased knowing fully well about the suit filed by the second plaintiff to recover the loan amount and as per Act 10/75 and under Section 53 of the Transfer of Property Act, 1882, and consequently recording finding to all the issues and additional issues against the plaintiff, ultimately dismissed the suit with costs of the second defendant.
6. The judgment of the trial Court was challenged in A.S. No. 69 of 1989 before the Sub Court, Vridhachalam and the appeal was allowed and by allowing the appeal, the suit was decreed setting aside the judgment and decree of the trial Court and further granting time to hand over possession to the second defendant in respect of item 5 of the suit properties and relegating separate enquiry under Order 20 Rule 12 C.P.C. in respect of the the mesne profits. The second defendant has filed this Second Appeal.
7. At the time of admission, the following substantial questions of law have been framed:-
(1) Whether in law the lower appellate Court is right in holding that the sale in favour of the appellant is hit by lis pendens?
(2) Whether in law the lower appellate Court was right in omitting to see that any sale by a debtor during the pendency of Debt Relief Acts should be construed to be an attempt to defeat the claim of the creditor?
8. At the time of argument the following additional substantial questions of law have been framed:-
(1) Whether in law the lower appellate Court was right in failing to see that under Section 47 C.P.C. the issue had to be decided by the Court executing the decree and not by separate suit?
(2) Whether in law the lower appellate Court was not wrong in omitting to see that the plaintiff having failed to take recourse to proceedings under Order 21 Rule 58 C.P.C. was estopped from filing a fresh suit?
9. The learned counsel for the appellant/second defendant contended that only to defeat the rights of the second defendant, the decree holder in O.S. No. 1902 of 1974, the first defendant colluding with the plaintiff had executed the sale deed Ex.A-1 dated 26.2.1975. In this regard, the learned counsel pointed out that lawyer notice under Ex.B-1 dated 24.7.1974 by the second defendant was caused claiming the amount due on the promissory note executed in his favour admittedly by the first defendant's husband Ayyathurai Padayachi and also the amount due on the promissory notes executed in favour of his father Chella Padayachi on 27.9.1972 for Rs. 300/- and also in favour of his brother Ramalinga Padayachi on 20.8.1973 for Rs. 400/-. The first defendant replied under Ex.B-2 dated 3.8.1974 admitting the promissory note executed in favour of the second defendant and denying the other two promissory noters which have been assigned in favour of the second defendant. The second defendant filed the suit O.S. No. 1902 of 1974 on 14.11.1974 in the District Munsif Court, Vridhachalam, in which the first hearing of the suit was on 6.1.1975. The first defendant entered appearance through an advocate and the suit was dismissed on 15.9.1978 in view of the Ordinance 5/78 and after the suit was restored to file as per order in I.A. No. 20 of 1982 since the first defendant remained ex parte, ex parte decree was passed on 11.3.1982. As such according to the learned counsel for the appellant/second defendant, after the lawyer notice Ex.B-1 dated 24.7.1974 and also the suit O.S. No. 1902 of 1974 was filed in which the first date of hearing was on 6.1.1975, to defeat the amount due to the second defendant, the first defendant colluding with the plaintiff brought the sale deed Ex.A-1 on 26.2.1975 and as such, the said sale is not valid under Section 53 of the Transfer of Property Act and also under the Act 10/75. The learned counsel further pointed out that inasmuch as the second defendant purchased item 5 of the suit properties in the Court auction sale in E.P. No. 67 of 1983 in O.S. No. 1902 of 1974 under Ex.B-4 on 28.4.1984 and the possession was also handed over to him, the plaintiff is not entitled to the relief sought for in respect of item 5 of the suit properties, viz., Dry R.S. No. 512/14 measuring 1.28 acres. The learned counsel for the appellant further submitted that the decree in O.S. No. 1902 of 1974 is also binding on the plaintiff, despite the fact the plaintiff was not a party to the suit and inasmuch as the plaintiff has purchased the suit properties under sale deed Ex.A-1 on 26.2.1975 from the first defendant during the pendency of the suit O.S. No. 1902 of 1974, the first hearing of which suit was on 6.1.1975, the said sale is not valid.
10. As regards the promissory notes Exs.A-2 to A-4 dated 15.7.1973, 2.8.1973 and 29.8.1973 respectively by the first defendant's husband Ayyathurai Padayachi in favour of P.W.2, Sriranga Padayachi, P.W.3 and to one Palani Padayachi respectively, the learned counsel for the appellant argued that even which debts according to the plaintiff, had been discharged by him pursuant to the purchase of the suit properties from the first defendant as per sale deed Ex.A-1, the said debts have been created only for the purpose of the sale deed, in that there have been no endorsement of discharge in the said promissory notes and there have been no punch of the revenue stamp of the said promissory notes so as to say that there have been discharged. It was also brought to the notice that P.W.2 Sriranga Padayachi denied that the promissory note Ex.A-2 was executed by Ayyathurai Padayachi and after obtaining loan of Rs.3,000/- in his favour. The learned counsel also pointed out that Ex.A-1 is not the original sale deed and that the plaintiff and the defendants 1 and 2 are residing in the same street of the village and as such, the plaintiff could have known about the loan amount advanced by the second defendant, his brother Ramalinga Padayachi and their father Chella Padayachi to Ayyathurai Padayachi and also the suit O.S. No. 1902 of 1974 filed by him to recover the amount due on the said promissory notes. Inasmuch as item 5 of the suit properties was brought for Court auction sale in E.P.No.67 of 1983 after attaching the said property, the plaintiff claiming to be the purchaser of the said property from the first defendant in respect of that attachment property, ought to have filed petition under Order 21 Rule 58 C.P.C. to raise the attachment and the suit as filed is not maintainable.
11. The learned counsel for the appellant/second defendant has relied on the following decisions:-
(1) C. Abdul Shukoor Saheb - vs. - Arjit Papa Rao (deceased) , in which the Full Bench of the Apex Court has ruled:-
"... the written statement had not been artistically drafted, keeping in view the real distinction between a sham and nominal sale which is not intended to pass title and a sale which is real but which is voidable at the instance of creditors because the transfer is intended in the language of section 53(1) "to defeat or delay creditors." But in the light of the averments it must be held that the defendants raised two distinct pleas; (1) that the sale was a sham, a pretended sale without any consideration and not intended to pass any title to the nominal purchaser and in the alternative (2) that even if it were a real transaction supported by consideration and intended to pass title to the plaintiff, still the same was, having regard to the circumstances stated a fraud upon the creditors and therefore voidable at their instance. In these circumstances it could not be said that there had not been a sufficient plea of a defence based upon section 53 as to justify or entitle the court to afford relief if satisfied that the same was proved."
(2) Alamelu Ammal - vs. - Chinnaswamy Reddiar reported in 1989-1 Law Weekly 131, in which this Court has observed:-
"As held in by a Bench of this Court the adjudication referred to under O.21 Rule 58, C.P.C. (as amended in 1976) is not summary and it is the intention of legislature under the amended C.P.C. that it should be a decision as if rendered in a regular suit resulting in an appealable decree, and the fuller examination of the rights of parties has to be held after giving them adequate opportunity to place all relevant materials before the court so that the court should ultimately decide and adjudicate on all questions including questions relating to title or interest in the property attached. It is clear from the ratio laid down in the above said decision that in view of the amended provisions of Order 21 rule 58 C.P.C. the question of filing a separate suit is barred and all questions relating to title or interest in the property attached have to be decided and adjudicated only in the claim proceedings and not by a separate suit."
12. The learned counsel for the first respondent/plaintiff argued that the plaintiff has purchased the suit properties under the sale deed Ex.A-1 dated 26.2.1975 from the second respondent/first defendant after making enquiries with regard to loan amount if any payable by the first defendant and in fact as per the sale deed he undertook to discharge the amounts due to P.W.3 Rajavannian, Ramalinga Padayachi and Palani Padayachi and P.W.2 Sriranga Padayachi towards promissory notes executed in their favour and he also discharged the amounts due to them and paid the sum of Rs.5,072/- in cash to the first defendant at the time of registration of sale deed, as such, the plaintiff is a bona fide purchaser for value. The learned counsel further argued that though the suit O.S. No. 1902 of 1974 was filed by the second defendant to recover the amount due on the promissory notes against the first defendant, it was dismissed on 15.7.1978, after the plaintiff purchased the suit properties under Ex.A-1 dated 26.2.1975. The learned counsel for the plaintiff also vehemently contended that there was no suit filed by the second defendant as creditor that to defeat and delay the amount due to him the suit properties sold under Ex.A-1 to the plaintiff so as to attract Section 53 of the Transfer of Property Act. The learned counsel also argued that since as per Section 6 of the Tamil Nadu Indebted Agriculturists (Temporary Relief) Act (Act X of 1975), the suit properties are not purchased by the plaintiff to defeat the second defendant and in spite of enquiries made in the village it was not brought to notice that amount is due and payable by the first defendant's husband to the second defendant on promissory notes. The learned counsel also pointed out that the suit properties were attached in execution of the decree in O.S. No. 1902 of 1974 by the second defendant on 11.4.1983 pursuant to which the second defendant also purchased item 5 of the suit properties in the Court auction sale on 22.2.1984, the possession of which was also taken by the second defendant through Court only on 2.7.1985 whereas the plaintiff has purchased the suit properties very much earlier and as early as on 26.2.1975 under Ex.A-1. Therefore, the plaintiff being the bona fide purchaser according the counsel, the sale under Ex.A-1 is not hit by Section 53 of the Transfer of Property Act as well Section 6 of the Tamil Nadu Indebted Agriculturists (Temporary Relief) Act (Act X of 1975).
13. The learned counsel for the first respondent/plaintiff also relied on the following decisions:-
(1) Ponnuswami Gounder v. S.R. Ramasami Chettiar and others reported in 1985-I M.L.J. 302, in which this Court has observed:-
"In this case the sale of property in favour of the appellant by the second respondent was intended only for the purpose of discharging the debts of the second respondent. The pre-dominant object of sale was to pay the creditors out of the proceeds and if the purchaser was unaware of the existence of the concerned promissory note debts, as established by evidence then the payment of particular debt only without payment of all the debts would at best be a case of fraudulent preference which could be impugned only under the law relating to insolvency and cannot be characterised as a fraud on creditors so as to justify the institution of proceedings under section 53 of the Transfer of Property Act as pointed out by the Supreme Court in Abdul Shakoor - vs. - Arji Papa Rao, "
(2) M. Govinda Gounder - vs. - Pichandi Pillai and another reported in 2002(4) C.T.C. 550, in which this Court has observed:-
"Code of Civil Procedure 1908, Order 21, Rule 58 - Adjudication of claims and objections to attachment of property. Property belonged to judgment debtor. Judgment debtor sold property in favour of third party on 19.9.1985. Decree holder attached said property subsequently on 10.10.1985. Third party purchaser filed application for raising attachment on ground that he is purchaser in good faith for consideration. Transfer of title was earlier to order of attachment. Burden to prove that purchase was to defraud creditor or decree holder is on decree holder by adducing evidence. Burden to prove fraud is very heavy on person pleading fraud. Burden not discharged by decree holder. Order of attachment of property was raised and application filed by third party purchaser was allowed."
14. It is seen from Ex.B-3, suit register extract in O.S. No. 1902 of 1974 on the file of the District Munsif Court, Vridhachalam that the second defendant filed the suit O.S. No. 1902 of 1974 to recover the amount due on the promissory note executed for Rs. 400/- in his favour by the first defendant's husband Ayyathurai Padayachi and also to recover the amount due on the promissory notes executed in favour of Chella Padayachi, the second defendant's father for Rs.300/- on 27.9.1972 and another promissory note for Rs.400/- executed in favour of Ramalinga Padayachi, the brother of the second defendant on 20.8.1973 by Ayyathurai Padayachi and which promissory notes have been assigned in his favour. The suit was filed on 14.11.1974 against the first defendant on the death of her husband Ayyathurai Padayachi. Before filing the suit, the second defendant caused lawyer notice under Ex.B-1 dated 24.7.1974 claiming the amount due on the said promissory notes, to which the first defendant sent reply through advocate under Ex.B-2 on 3.8.1974 admitting the promissory note executed in favour of the second defendant and denying the other two promissory notes. The first hearing of the suit was on 6.1.1975. It appears that the first defendant contested the suit by engaging advocate which was dismissed in view of Ordinance 5/78 on 15.9.1978 and after restoration of the suit as per order in I.A. No. 20/82 since the first defendant remained ex parte, an ex parte decree was passed on 11.3.1982. Therefore, the first defendant was fully aware of the fact that the amount due and payable by her husband Ayyathurai Padayachi to the second defendant Sivasami as per promissory note dated 21.8.1972 for Rs.400/-, in that she replied under Ex.B-2 for the notice caused under Ex.B-1 by the second defendant. Though as per reply notice Ex.B-2 she denied the execution of the promissory notes in favour of the second defendant's father Chella Padayachi and his brother Ramalinga Padayachi, she did not choose to contest the suit after it was restored. Further, the first defendant sold the suit properties to the plaintiff under Ex.A-1 on 26.2.1975 after the notice Ex.B-1 which was replied under Ex.B-2 on 3.8.1974 and after filing of the suit O.S. No. 1902 of 1974 by the second defendant on 14.11.1974 in which the suit first hearing was on 6.1.1975. Therefore, it is clear that as rightly contended for the appellant, the sale under Ex.A-1 was made to defeat and delay the amount payable to the second defendant.
15. It is in evidence that the plaintiff and the defendants 1 and 2 are residing in the same street of the village. Therefore, it is unbelievable that the plaintiff was not aware of the amount due and payable by the first defendant's husband Ayyathurai Padayachi and on his death by the first defendant to the second defendant. For the amount due to the promissory notes, marked as Exs.A-2 to A-4, the plaintiff undertook to discharge as per the sale deed Ex.A-1. Ex.A-2 is dated 15.7.1973 executed in favour of P.W.2, Sriranga Padayachi for Rs.3,000/-. Though the details with regard to the promissory note Ex.A-2 have been recited in the sale deed Ex.A-1 and the amount due on the said promissory note payable as Rs.3,292.50 towards principal and interest, P.W.2 Sriranga Padayachi denied that such promissory note was executed in his favour and that no amount was due for the said promissory note and so no amount was paid to him by the plaintiff in the discharge of that promissory note. He even went to the extent of saying that the mentioning of the promissory note Ex.A-2 in the sale deed Ex.A-1 is false. In the sale deed Ex.A-1, it appears, P.W.2 is an identifying witness. Ex.A-3 dated 2.8.1973 is a promissory note said to have been executed by Ayyathurai Padayachi in favour of P.W.3 for Rs.400/-. Though P.W.3 supported the case of the plaintiff that Ayyathurai Padayachi executed the said promissory note in his favour for Rs.400/- and the amount due on the promissory note was discharged by the plaintiff in 1975 when the first defendant sold the properties to the plaintiff, it is his evidence that at the time of sale, the loan amount payable to him, Palani Padayachi and P.W.2 Sriranga Padayachi were discharged. He has also admitted that he was taken by the first defendant to the Sub Registrar's Office, he has not attested in the sale deed Ex.A-1. Though Ex.A-4 promissory note dated 29.8.1973 said to have been executed in favour of one Palani Padayachi by Ayyathurai Padayachi for Rs.600/-, the Palani Padayachi has not been examined. In the promissory notes Exs.A-2 to A-4 no attestor has singed and also there is no endorsement of discharge in the said promissory notes. The revenue stamps were also not punched indicating that the amount for the promissory notes have been discharged. Though as per sale deed Ex.A-1, the plaintiff undertook to discharge the promissory notes said to have been executed in favour of one Ramalinga Padayachi for Rs.550/-, the said promissory note has not been marked. Ramalinga Padayachi as well the Palani Padayachi also were not examined on the side of the plaintiff.
16. Further, Ex.A-1 is only the registration copy of the sale deed and the original sale deed has not been marked. Despite the fact, the first defendant replied to the notice Ex.B-1 under Ex.B-2 on 3.8.1974 and the first hearing date of the suit O.S. No. 1902 of 1974 was on 6.1.1975 and the suit itself was filed on 14.11.1974, if really the sale deed Ex.A-1 was executed by the first defendant in favour of the plaintiff and not to defeat and delay the creditors, especially, the second defendant, the amount due to the second defendant could have been mentioned in the sale deed Ex.A-1. Though it is the evidence of P.W.3 Rajavannian that the amount due and payable to him as per promissory note Ex.A-3 was paid to him by the plaintiff at the time of execution of the sale deed Ex.A-1, it is seen from Ex.A-3 promissory note on the reverse side that the promissory note was assigned to one Ramalinga Padayachi on 23.12.1975 and the endorsement is also incomplete. In the sale deed Ex.A-1, it is recited that Rs.1,000/- was paid to the first defendant at the time of death of her husband Ayyathurai Padayachi and according to the plaintiff, P.W.1, the amount was paid without obtaining any receipt which is unbelievable. Though in the sale deed Ex.A-1, the amount due and payable to the promissory note executed in favour Palani Padayachi with interest calculated and the principal amount payable to the Palani Padayachi is mentioned as Rs.600/-, in Ex.A-4 there has been no such endorsement mentioning the amount paid by the plaintiff to the said creditor. In the sale deed Ex.A-1, the plaintiff agreed to discharge the promissory note executed by Ayyathurai Padayachi in favour of Ramalinga Padayachi for Rs.550/- and the amount payable with interest being Rs.597.80, it appears he has not discharged the same. It appears the said Ayyathurai Padayachi executed a promissory note in favour of Ramalinga Padayachi who assigned the promissory note in favour of one Ramasamy Padyachi who in turn assigned the same in favour of D.W.2 Ramar Padayachi and he filed the suit O.S. No. 2410 of 1979 against the first defendant and after the suit was decreed, it appears only on 17.8.1981 as per Ex.A-23, receipt issued by D.W.2 to the plaintiff for discharging the said decree amount.
17. Therefore, all these facts clearly would go to show that only to defeat and delay the amount due and payable to the second defendant on the three promissory notes as claimed under Ex.B-1 dated 24.7.1974 to which the first defendant replied under Ex.B-2 dated 3.8.1974 and after O.S. No. 1902 of 1974 was filed on 14.11.1974 by the second defendant against the first defendant, the first hearing of which suit was on 6.1.1975, the first defendant executed the sale deed conveying the suit properties to the plaintiff under Ex.A-1 dated 26.2.1975. As such, the said sale is hit under Section 53 of the Transfer of Property Act and though such pleading was not specifically taken in the written statement of the second defendant which has been inartistically drafted that such sale by the first defendant to the plaintiff was to defeat and delay the amount payable to the second defendant. As such, clear stand has been taken in the written statement of the second defendant that the sale under Ex.A-1 dated 26.2.1975 to the plaintiff by the first defendant was hit by Section 53 of the Transfer of Property Act being fraudulent transfer.
18. Further, the Tamil Nadu Indebted Agriculturists (Temporary Relief) Act (Act X of 1975 came into force on 10.1.1975. Though the first defendant was an agriculturist within the meaning of Section 2 of the said Act and though there is a specific provision prohibiting the sale by the debtor of the said Act as contemplated under Section 6 of the said Act, the sale made by the first defendant to the plaintiff is to be presumed only to defeat and to delay the creditors of the first defendant. Section 6 of the said Act reads thus:-
"6. Effect of transfer of immovable property by the debtor:
Every transfer of immovable property by a debtor entitled to the benefit of Section 3 or Section 4, made on or after the date of the commencement of this Act and before the expiry of a year from the date of the commencement of this Act, shall, in any suit or other proceedings, with respect to such transfer be presumed, until the contrary is proved, to have been made with intent to defeat or delay the creditors of the transferor."
Since the sale was alleged to have been effected under Ex.A-1 dated 26.2.1975, there is a presumption that as per section 6 of the said Act that the sale was to defeat and to delay the creditor, the second defendant from whom admittedly the first defendant's husband Ayyathurai Padayachi availed loan by executing promissory note for Rs.400/- on 21.8.1972.
19. It is the evidence of D.W.4 Srinivasan that he advanced a loan of Rs.200/- to Ayyathurai Padayachi in 1973 and to recover the amount due, as seen from Ex.B-13 suit register extract, he filed suit S.C. No. 1343 of 1974 in the District Munsif Court, Vridhachalam and obtained decree and still the amount due has not been paid by the first defendant.
20. Admittedly, the second defendant is in possession of item 5 of the suit properties pursuant to the purchase in the Court auction sale on 22.2.1984 in executing the decree in O.S. No. 1902 of 1974, which possession he obtained through Court on 2.7.1985. Further, if really the plaintiff was aggrieved over the attachment and sale of the item 5 of the suit properties in execution of the decree in O.S. No. 1902 of 1974 by the second defendant, he ought to have filed only petition under Section 47 C.P.C. and not by way of separate suit and therefore, the suit as filed is not maintainable. Inasmuch as the second defendant purchased item 5 of the suit properties in Court auction sale in execution of the decree in O.S. No. 1902 of 1974, the said sale cannot be said to be hit by lis pendens. Therefore, the first respondent/plaintiff is not entitled for declaration and possession of item 5 of the suit properties sought as per the amended plaint. It follows the suit is to be dismissed reversing the judgment of the first appellate Court in A.S. No. 69 of 1989.
21. In the result, the Second Appeal is allowed with cost. The judgment and decree dated 25.9.1991 made in A.S. No. 69 of 1989 on the file of the Sub Court, Vridhachalam are set aside and the suit O.S. No. 1181 of 1983 is dismissed.