Madras High Court
Mayilsamy Gounder (Died) vs Ellappan on 19 September, 2019
Author: R.Pongiappan
Bench: R.Pongiappan
S.A.No.1220 of 1999
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 19.09.2019
CORAM:
THE HONOURABLE Mr.JUSTICE R.PONGIAPPAN
S.A.No.1220 of 1999
[Judgment Reserved on 22.08.2019]
1.Mayilsamy Gounder (Died)
2.Muthulakshmi
3.S.Sampathkumar
4.Nallammal ... Appellant / Appellant /
Defendant
Vs.
Ellappan ... Respondent / Respondent/
Plaintiff
PRAYER: Appeal filed under Section 100 of Civil Procedure Code, against
the Judgment and Decree, dated 29.01.1999 passed in A.S.No.56 of 1997 on
the file of the Subordinate Judge of Palani, confirming the Judgment and
Decree, dated 04.07.1997 passed in O.S.No.1078 of 1992, on the file of the
District Munsif of Palani.
For Appellants : Mr.K.Balasubramanian
For M/s. Sarvabhuman Associates
For Respondent : Mr.Balasubramania Iyar
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S.A.No.1220 of 1999
JUDGMENT
Aggrieved over the concurrent findings made in O.S.No.1078 of 1992 and in A.S.No.56 of 1997, the appellant herein, who is the defendant in the Suit, preferred this Second Appeal and prayed to set aside the Judgment rendered by the Courts below.
2. Before the trial Court, the respondent herein filed a suit and seeks the relief to declare that he is entitled to the suit properties. Consequently, he prayed to the relief to restrain the defendant from in any way interfering with the possession of the suit property, by restoring for delivery through Court in E.A.No.401 of 1992 in E.P.No.552 of 1988 or otherwise and for respective costs.
3. By Judgment and Decree, dated 04.07.1997, the learned District Munsif, Palani, allowed the Suit and granted Decree in favour of the plaintiff, for the prayer sought for by the plaintiff. Aggrieved over the said findings, the appellant herein preferred an appeal in A.S.No. 56 of 1997, on the file of Sub Court, Palani. By Judgment and Decree, dated 29.01.1999, the learned Subordinate Judge, Palani, had dismissed the appeal after confirming the findings arrived at by the District Munsif, Palani. Feeling aggrieved over the same, the appellant, being the appellant in the First Appeal, preferred this Second Appeal.
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4. For the sake of convenience, the parties are referred to as, as described before the trial Court.
5. The averments made in the plaint, in brief, are as follows:-
(i) Originally, the suit properties are the self acquired property of one Nachimuthu Gounder. He had executed a registered settlement deed on 15.04.1950, in favour of his junior wife Valliammal. Out of the total extent of 10.77 Acres, comprised in S.F.Nos.695, 699/1, 699/2, 698, 728/2, 696 an undivided 1/3 ie., 3.59 acres was the subject matter of the settlement deed.
Immediately after the execution of the settlement deed, the said Valliammal given with the possession of 3.59 acres. By virtue of the settlement deed, the said Valliammal made usufructuary mortgage to one Narayanasami Naicker, by a registered deed, dated 12.06.1967 for Rs.15,000/-. The mortgagee was given possession of the portion of the suit properties. Thereafter, the said Narayanasami Naicker paying the kist for the property as an othidar. The said Narayanasami Naicker assigned the othi, in favour of his son Ellappan (plaintiff) by a registered document on 25.04.1980 and then the said Ellappan purchased the suit property from the said Valliammal by a registered sale deed, dated 28.04.1980.
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(ii) The plaintiff herein also took possession of the property from Narayanasami Naicker and the amount paid for the othi was a part of the consideration to the sale deed, dated 28.04.1980. Eversince from the date of purchase, the plaintiff is in the possession of the suit property. The suit properties were originally comprised in patta Nos.351 and 533. During the Survey Update, patta was also issued in favour of the plaintiff with specific survey numbers and the extents. The new patta numbers of the suit properties are 525, 956, 959 and 1035. While so, the defendant claiming to be the Court auction purchaser has been letting out that he is going to take delivery of the suit properties. An enquiry, the plaintiff came to know that his sister one Mylathal has filed a Suit in O.S.No.431 of 1985, on the file of District Munsif at Udumalai Pettai and obtained a decree in 1986. The said decree has been transferred to this Court and in E.P.No.552 of 1988 the suit properties are attached on 20.01.1989 and brought for sale.
(iii) The defendant seeks to have taken the properties on Court auction on 29.04.1992. The entire proceedings by the defendant had been collusively taken behind the back of the plaintiff to defraud his rights. Valliammal is the junior wife of Nachimuthu Gounder and the defendant is the son of senior wife. Mylathal is the sister of Mylsami Gounder. The attachment and the Court proceedings against the suit properties have been 4/27 http://www.judis.nic.in S.A.No.1220 of 1999 taken by the defendant in collusion with Valliammal and the Court auction sale is practically 12 years after the purchase of the property by the plaintiff on 28.04.1980. The defendant has absolutely no right and he cannot attempt to take delivery of the property in pursuance of the alleged Court auction sale, dated 29.04.1992. Having taken the proceedings in E.P., behind the back of the plaintiff, the defendant may stealthily tried to obtain the record of delivery. Hence, the suit.
6. The averments made in the written statement filed by the defendant, in brief, are as follows:-
(i) Initially on 30.07.1968, Valliammal, the junior wife of Nachimuthu Gounder borrowed Rs.8000/- from Smt.Mylathal for valuable consideration and executed a Demand Promissory Note agreeing to pay the same with interest. Subsequently, for recovering the loan amount, the said Mylathal filed a suit on 28.07.1971 in O.S.No.475 of 1971, on the file of the Sub Judge, Coimbatore, for the recovery of Rs.9,436/- with interest. Along with the plaint, the said Mylathal filed a petition for attachment before Judgment in I.A.No.647 of 1972, in which, she wanted to attach the following properties hereunder:-5/27
http://www.judis.nic.in S.A.No.1220 of 1999 “Description of Properties Madurai District, Palani Sub District, Palani Taluq, Manoor Village, Patta No.351 Surevey No. Extent :
695 2 – 13
699/1 1 – 54
699/2 1 – 96
698 0 – 62
728/2 0 – 80
Patta No.533
697 Uundivided 3 – 22 out of 4.22 acres
T.D.No.6
696 Undivided 0 -51 out of 1.52 acres
Undivided
½ 3-59 Nanja out of 10 – 77 acres
With irrigation right from Shanmugha River Anaicut.
The above properties were attached on 24-08-1971.”
(ii) The said suit was transferred to the Sub Court at Udumalaipettai and renumbered as O.S.No.431 of 1985. Subsequent to that the entire attachment was made absolute on 24.04.1973. Thereafter, for the 6/27 http://www.judis.nic.in S.A.No.1220 of 1999 realization of decree amount of Rs.17,131.60 and for cost, the decree passed by the Sub Court Udumalaipettai was transferred to the District Munsif Court, Palani in E.A.No.606 of 1987 in O.S.No.431 of 1985. Only thereafter, the said Mylathal filed Execution Application through K.Ramachandran, Advocate, Palani, but it was returned and not re- presented. Latter on, the said Mylathal again filed an application in E.P.No. 552 of 1988, to bring the properties of Valliammal attached before Judgment for sale. By mistake, the properties were again sought to be attached on 16.12.1988, when the original attachment before Judgment which was confirmed was in force. So, the original attachment would prevail. In the meanwhile, the sale was held on 29.04.1992 after following the procedures prescribed. The sale was confirmed on 06.07.1992 and in turn, the sale deed has also been executed in favour of the defendant, on 06.07.1992. Only thereafter, the defendant applied for delivery of possession in E.A.No.401 of 1992 and the same is pending. Only after coming to know that the defendant has purchased the property in Court auction, the plaintiff has filed this Suit.
(iii) It is an admitted fact that the suit properties are given to Valliammal, under a Settlement Deed, dated 15.04.1976. The plaint is silent in respect to the details of properties, which were handed over to Valliammal. The sale made in favour of the plaintiff is not at all valid in law 7/27 http://www.judis.nic.in S.A.No.1220 of 1999 and cannot confer on him any title. The private sale after the attachment over the property by Valliammal effected in O.S.No.475 of 1971 in I.A.No. 647 of 1971 on 24.08.1971 by Mylathal and hence void. The othi in favour of Narayanasami Naicker and assignment to the plaintiff was liable to be scaled down. The Sale Deed, dated 28.04.1980, in favour of the plaintiff is contrary to the attachment by prohibitory order issued to Valliammal, not to effect any encumbrance or alienation against attachment, which remained absolute.
(iv) Only after hearing the said Valliammal the attachment before judgment was made absolute. The properties were attached on 24.08.1971 more than nine years before the purchase by the plaintiff. The plaintiff was not in the scene at all and so, he has no locus standi to question the court proceedings initiated 9 years before he came into the picture. The plaintiff has purchased the property from a person, who had been prohibited and restrained by an order of Court from alienating or encumbering the properties and as such, he has no title to the said properties. The defendant is under law entitled to take delivery of the properties purchased by him in court auction. The defendant has filed an application in E.A.No. 401 of 1992, for delivery of properties. There is no cause of action. Hence, the suit is liable for dismissal.
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7. Based on the above pleadings, the learned District Munsif, Palani, framed necessary issues and tried the suit.
8. Before the trial Court, on the side of the plaintiff, the plaintiff examined himself as P.W.1 and 16 documents were marked as Ex.A1 to 16. On the side of the defendants, none have been examined, however, 5 documents have been marked as Exs.B1 to B5.
9. Having considering all the materials placed before him, the learned District Munsif granted a decree in favour of the plaintiff. In the appeal, the said finding was confirmed. Aggrieved over the same, the present Second Appeal has been preferred.
10. At the time of admitting the appeal, this Court has formulated the following Substantial Questions of Law, for consideration:-
1.Whether the provisions under 38, Rule 9 CPC would render the attachment before judgment void ab initio, when the suit is dismissed.
2. Whether the lower appellate Court has correctly applied the principles set out in A.I.R. 1987 SC 2061 to the facts of the present case?” 9/27 http://www.judis.nic.in S.A.No.1220 of 1999 Substantial Question of Law No.1
11. Before the trial Court, the specific case of the plaintiff/respondent is that the suit property is the absolute property of one Nachimuthu Gounder. On 15.04.1950, he executed a Settlement deed (Ex.A1), in favour of his junior wife Valliammal. On 12.06.1967, the said Valliammal mortgaged the said property, in favour of plaintiff's father Narayanasami Naicker, vide Ex.A2. Further, during the time of execution, she handed over the possession of the suit property to the plaintiff's father Narayanasami Naicker. After some time, on 25.04.1980, the said Narayanasami Naicker, made over the said mortgage, in favour of the plaintiff vide Ex.A3. Only thereafter, on 28.04.1980, the said Valliammal executed the Sale Deed (Ex.A4), in favour of the plaintiff. Eversince from the date of purchase, the plaintiff is in the possession and enjoyment of the suit property. For proving the same, he produced the kist receipts as Ex.A5 to A11. Further, he produced the copy of chitta, dated 03.09.1994 stands in his name as Ex.A12
12. On the other hand, it is the case of the appellant/defendant that for the loan availed by the Valliammal from Smt.Mylathal on 28.07.1971, the said Mylathal has filed a suit, as against the said Valliammal / defendant 10/27 http://www.judis.nic.in S.A.No.1220 of 1999 in O.S.No.475 of 1971, on the file of the learned Subordinate Judge, Coimbatore. Along with the suit, the said Mylathal filed an application under Order 38 Rule 5 in I.A.No.647 of 1972, in which she prayed to attach the suit property before Judgment. Pending suit, the same has been transferred to the Court of District Munsif, Udumalaipettai and assigned with a new case number as O.S.No.431 of 1985. After an elaborate enquiry, on 31.01.1986, the learned District Munsif, Udumalaipettai, dismissed the suit filed by the Mylathal. Before that, on 24.04.1973 itself, the interim attachment made in the application filed in I.A.No.446 of 1972 was made absolute.
13. After dismissing the suit by the learned District Munsif, Udumalaipettai, the plaintiff in the said suit, who is the aggrieved party, filed an appeal before the Sub Court, Udumalaipettai in A.S.No.52 of 1986. After elaborate enquiry, the said appeal was allowed and the dismissal order passed by the District Munsif, Udumalaipettia was set aside. Ultimately, the suit filed by the plaintiff Mylathal was decreed with costs. Only thereafter, the decree granted in favour of the plaintiff was transferred to the District Munsif Court, Palani. In the Court of District Munsif, Palani, the plaintiff filed an Execution Application in E.P.No.552 of 1988 for the realization of decree. In the course of said proceedings, the suit schedule properties are again attached on 14.12.1988 and thereafter, on 29.04.1992, the defendant 11/27 http://www.judis.nic.in S.A.No.1220 of 1999 herein purchased the suit properties through the Court auction and the same was confirmed on 06.07.1992. The further case of the defendant is that, since the attachment order was passed on 28.07.1971 itself, the sale made by the said Valliammal, dated 28.04.1980, in favour of the plaintiff is void one.
14. In this regard, the learned counsel appearing for the appellants urged the same contention as above and made a submission that the sale made in the name of plaintiff is void abinitio.
15. On the other hand, the learned counsel appearing for the respondent would contend that since the suit filed by Mylathal was dismissed on 31.01.1986, the attachment order passed in the application filed under Order 38 Rule 5 is also goes away along with suit. Only on 21.11.1986 in the application filed by Mylathal, the Judgment rendered by the learned District Munsif, dated 31.01.1986 was modified and also the decree has been granted in favour of said Mylathal. In fact, at the time of filing the appeal, no petition has been filed by the plaintiff to restore the interim order of attachment. Therefore, the sale made in favour of the plaintiff/respondent becomes absolute immediately after the dismissal of suit.
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16. Upon considering the arguments advanced by either side, the crux of the matter to be decided in this appeal is whether the interim order passed during the pendency of suit was continued after the period of dismissal. In this juncture, the learned counsel appearing for the appellants relied on various Judgments and made a submission that immediately after allowing the appeal, all the interim orders passed in earlier was revived. In this regard, he relied on various following judgments. In Vareed Jacob Vs. Sosamma Geevarghese & Ors., reported in (2005 (2) L.W. 103) the Hon'ble Apex Court has held as follows:
“4. ... Similarly, reliance was placed on the judgment of the Andhra Pradesh High Court in the case of Nandipatti Rami Reddi Vs. Nandipati Padma Reddy reported in AIR 1978 A.P.30 in which it has been laid down that when the dismissed suit is restored, the interim order and their operation during the period of interregnum are revived and the plaintiff must be restored to the position in which he was situated when the Court dismissed the suit for default and consequently all interlocutory orders passed before the order of dismissal would also revive along with the suit when the order of dismissal is set aside and the suit is restored, unless the Court expressly or by implication excludes the 13/27 http://www.judis.nic.in S.A.No.1220 of 1999 operation of interlocutory orders during the period between the dismissal and the restoration.”
17. Further, in the Judgment in D Peter Francis & Anr. Vs. PSB Educational Trust rep. by its Managing Trustee, Mr.S.Pethiah & Ors., reported in (2009 (2) MLJ 671), the Division Bench of this Court in paragraph No.12 has held as follows:-
“12. The issue as to how the applications which were filed and pending at the time when the suit was dismissed for default should be dealt with when the suit is restored again, came up for consideration before the Apex Court in (2004) 6 SCC 378 [Vareed Jacob v. Sosamma Geevarghese and others]. In paragraph 17, the Apex Court has held that if the suit is dismissed for default without any reference to the ancillary orders passed earlier, then the interim orders shall revive as and when the suit is restored. In view of the above judgement of the Apex Court, there is no difficulty to hold that when the suit is dismissed for default without any reference to the ancillary orders passed earlier, the interim orders shall revive as and when the suit is restored....”
18. In the Judgment in B Gurubackiam v. The State of Tamil Nadu & Ors reported in (2011 (1) CTC 1) , the Division Bench of this Court has 14/27 http://www.judis.nic.in S.A.No.1220 of 1999 held in paragraphs 28 to 30, which reads as follows:-
“28. It is a well settled proposition of law that orders of stay pending disposal of the suit or proceeding are ancillary orders and they are all meant to supplement the ultimate decision arrived at in the main suit or proceeding. Hence, the suit or proceeding dismissed for default and subsequently restored by the order of the Court, all ancillary orders passed in the said suit or proceeding shall stand revived unless there is any other factor on record or in the order of dismissal to show to the contrary.
29. The aforesaid view was taken by the Madras High Court as far back as in the year 1934 in the case of Saranatha Ayyangar Vs. Muthiah Moopanar reported in AIR 1934 Mad. 49 where it has been held that on restoration of a suit dismissed for default all interlocutory matters shall stand restored, unless the order of restoration says to the contrary.
30. In the case of Nandipati Rami Reddi Vs. Nadipati Padma Reddy reported in AIR 1978 AP 30 it has been held by a Division Bench of the Andhra Pradesh High Court that when the suit is restored all interlocutory orders and their operation during the 15/27 http://www.judis.nic.in S.A.No.1220 of 1999 period between dismissal of the suit for default and restoration shall stand revived. That once the dismissal is set aside, the plaintiff must be restored to position in which he was situated, when the Court dismissed the suit for default. Therefore, it follows that interlocutory orders which have been passed before the dismissal would stand revived along with the suit when the dismissal is set aside and the suit is restored unless the Court expressly or by implication excludes the operation of interlocutory orders passed during the period between dismissal of the suit and the restoration.”
19. More than that, in the Judgment in Thangeswari & Ors. Vs. Thirumalvalavan & Ors., reported in (2011 (2) CTC 149), this Court, in paragraph No.16, has held as follows:-
“16. It is settled law that whenever interim orders were passed in a suit and when the suit was dismissed, the interim order passed will also merge with the order of dismissal and when the suit was restored, the interim order already passed will get revived. This principle has been laid down in the judgment reported in ( 1935) Madras 365 (supra) and the same principles has been reiterated by the First Bench of this Court in the judgment reported in (2011) I M.L.J. 861 in the case of ( B.Gurubackiam 16/27 http://www.judis.nic.in S.A.No.1220 of 1999 Vs. State of Tamil Nadu). In the above decision of First Bench of this Court relied upon the the judgment of the Hon'ble Supreme Court reported in ( 2004) VI S.C.C. 378 in the case of ( Vareed Jacob Vs. Sosamma Geevarghese) wherein, the Hon'ble Supreme Court has held that the order of stay pending the disposal of a suit or proceedings are ancillary orders and in cases where such suit or proceedings, dismissed for default, is restored by the order of the Court then all ancillary orders stand revived, and held that on restoration of suit, interim order shall stand revived. “
20. Finally, the learned counsel appearing for the appellant relied on the Judgment of Andhra Pradesh High Court in Sanjeevi Mechanical Works Pvt. Ltd., Rep.by its Managing Director (died) per L.Rs & Ors., Vs. Amberlite Resins Pvt.Ltd., rep. by its Managing Director, Sri A.S.Narayana reported in [2016 (1) CCC 126 (A.P)] in which, in paragraph No.8, it has been held as follows:-
“8. In the light of the legal position as reflected in the judgment in Vareed Jacob (supra), I am of the opinion that even in the absence of a specific order of restoration of interlocutory applications, they stand revived with the restoration of the main case unless an express order was passed declining to 17/27 http://www.judis.nic.in S.A.No.1220 of 1999 restore such applications. With the restoration of the interlocutory applications, interim orders which were in force at the time of dismissal of the appeal, automatically got restored.”
21. So, on culling out the entire Judgments relied on by the learned counsel appearing for the appellants, all the interim orders already passed is restored, unless the Court expressly or by implication exclude the operation of interlocutory orders passed during the pendency of the suit.
22. Now, on a close reading of all the Judgments referred above, the Hon'ble Apex Court and various High Courts are decided the said issue only in respect to the suits which were dismissed for default. Further, the ancillary orders referred are not meant the order passed under Order 38 Rule 5 of the Civil Procedure Code. In fact in this case, the factual aspects are entirely different when comparing with the factual aspects found in the judgments relied on by the appellants' counsel.
23. Now it is admitted by either side, as the suit filed by the said Mylathal was dismissed by the District Munsif Court, Udumalaipettai on 31.01.1986, after full trial. So the said Judgment rendered by the District Munsif Court, Udumalaipettai, cannot be treated as the said suit is dismissed for default. So, the ratio laid down by all the above referred cases is entirely not applicable with the factual aspects found in this case, 18/27 http://www.judis.nic.in S.A.No.1220 of 1999 for the reason that the suit filed by the plaintiff pertains to this appeal was dismissed only after the full pledged trial.
24. In this occasion, it is necessary to see Order 38 Rule 9 CPC, which reads as follows:-
“Removal of attachment when security
furnished or suit dismissed:- Where an order is
made for attachment before judgment, the Court shall order the attachment to be withdrawn when the defendant furnishes the security required, together with security for the costs of the attachment, or when the suit is dismissed."
25. Hence, according to the said Rule, if the suit is dismissed immediately, the order of attachment has also ceased automatically, although no formal order for withdrawing the attachment has been recorded. At this juncture, it is relevant to see the case of the defendant that he filed an Execution Application before the District Munsif Court, Palani, only after allowing the appeal filed by the plaintiff before the Subordinate Judge, Udumalaipettai. Accordingly, the Execution Petition filed by the defendant is only on the strength of the decree passed by the Subordinate Judge, Udumalaipettai. In fact, the said decree was granted by the Subordinate Judge on 21.11.1986. Only thereafter as per the orders 19/27 http://www.judis.nic.in S.A.No.1220 of 1999 passed in the Execution Application filed in the Execution petition, the defendant purchased the suit properties through the Court auction. Therefore, it establishes the fact that the sale made by the District Munsif Court, Palani, is not on the strength of the order of interim attachment made by the Subordinate Judge, dated 28.07.1971.
26. In this regard, the learned counsel appearing for the respondent relied on the Judgment of this Court in Pavayammal & Anr. Vs. Muthusany Gounder & Anr., reported in (1997 (3) L.W 789) and made a submission, as according to Order 38, Rule 9, the interim attachment made in the application filed under Order 38 Rule 5 cannot survive after dismissal of the suit. In the Judgment relied on by the respondent's side counsel, this Court, in paragraph No.12, has held as follows:-
“In this case, admittedly an order of attachment was made with regard to item Nos.1 to 3 in I.A.2910/69 on 6.10.1971. Ultimately, the main suit has been dismissed on 29.4.1972, and there is no specific order with regard to dismissal of the attachment order (dismissal of I.A.2910/69) after dismissal of the suit that 1st appellant purchased item No.1 under Ex.A1 sale deed on 20.10.1972 (i.e. after the dismissal of the suit). In this appeal we are concerned with only item No.1, hence, I am not 20/27 http://www.judis.nic.in S.A.No.1220 of 1999 discussing the other items Nos.2 and 3. After the said sale, the respondents herein filed appeal and ultimately, the lower Appellate Court granted decree in favour of the plaintiffs (respondents herein). In view of the attachment order obtained pending suit, and subsequent decree in the appeal, the lower Appellate Court came to the conclusion that in spite of dismissal of the suit in view of the decree of the lower Appellate Court, the attachment order continues even after dismissal. In this view, the learned Subordinate Judge came to the conclusion that the sale by the appellants herein is subject to the order of attachment obtained pending suit. In those circumstances, Execution Petition filed by the 1st respondent herein, in realisation of the decree against the Item No.1 of the property is perfectly in order. The conclusion reached by the lower Appellate Court cannot be sustained in view of the decision of Full Bench of our High Court reported in AIR 1930 Madras 514 = 31 L.W. 643 Balaraju v. Masilamani. The Full Bench after considering earlier case laws came to the conclusion that “Üpon the dismissal of a suit, the attachment before Judgment necessarily ceases under Order 38, Rule 9 even though the Court did not pass an order withdrawing it”. In view of the decision referred to above, which is directly on the point, the conclusion reached by the lower Appellate Court is erroneous and the same is liable to be set aside....” 21/27 http://www.judis.nic.in S.A.No.1220 of 1999
27. The Judgment of Full Bench of this Court in Balaraju Chettiar Vs. Masilamani Pillai and Ors., reported in (AIR 1930 Madras 514), it has been held as follows:-
“On the general principle that the law presumes that to have been done which it orders to be done, it appears reasonable to hold that, when the Court is enjoined on dismissal of a suit to pass an order withdrawing the attachment but fails to do so, that attachment shall be held to have been withdrawn.”
28. Therefore, applying the factual aspects found in this appeal with Order 38 Rule 9 it is true once the suit is dismissed, the order of interim attachment has also been came to an end. In the said circumstances, it needs to see that the defendants in this case, being the auction purchaser, purchased the suit property only in the execution proceedings filed on the strength of Judgment rendered by the appellate Court. Because of the reason that between the date on which the suit was dismissed by the trial Court and the decree granted by the appellate Court, there was no order for attachment. It concludes that the plaintiff purchased the suit property from the said Valliammal before the period on which the second attachment was 22/27 http://www.judis.nic.in S.A.No.1220 of 1999 made by the District Munsif Court, Palani, in the execution proceedings initiated by the said Mylathal. Therefore, it cannot be said that the sale made in favour of the plaintiff is void. In fact, immediately after the dismissal of the suit the plaintiff becomes the absolute owner to the suit property. The Substantial Question of Law No.1 is answered as above. Substantial Question of Law No.2
29. In the Judgment rendered by our Hon'ble Apex Court in Nancy John Lyndon Vs. Prabhati Lal Chowdhury & Ors reported in (AIR 1987 SC 2061), our Hon'ble Apex Court has held as follows:-
“Even if it be doubtful as to whether an order for restoration of the suit or execution application dismissed for default would have the effect restoring the attachment levied in execution retrospectively so as to affect alienations made during the period between dismissal of the suit or execution application and the order directing restoration, it is clear that an order of restoration would certainly restore or revive the attachment for the period during which it was in subsistence, namely, prior to the dismissal of the suit or execution application. As such where the sale by the judgment-debtor of the property attached in execution was effected during the subsistence of the attachment and before the 23/27 http://www.judis.nic.in S.A.No.1220 of 1999 Title Execution Case was dismissed for default, it would be incorrect to say that by reason of the dismissal of the Title Execution case, the attachment came to an end and the order of restoration of the execution case would not affect any alienation made before the restoration although such alienations have been made during the subsistence of the attachment.”
30. Now coming to the factual aspects found in the case, which was decided by the Hon'ble Apex Court, the petition in question was dismissed for default, but in our case on hand, the suit filed by the said Mylathal was disposed after full trial. In the said aspect, it cannot be said that the facts of the present case is the same as that already decided by our Hon'ble Apex Court in the above Judgment. Accordingly, Substantial Question of Law No. 2 is answered, as the principles set out in the above referred Judgments is not attracted to the present case pending before this Court. Accordingly, Substantial Question of Law No.2 is answered.
31. In fine, for the forgoing reasons, this Second Appeal stands dismissed, confirming the Judgment and Decree, dated 29.01.1999 passed in A.S.No.56 of 1997 on the file of the Subordinate Judge of Palani. However, there shall be no order as to costs.
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Index : Yes / No
Internet : Yes / No
MPK
To
1.The Subordinate Judge
Palani.
2.The District Munsif
Palani.
3.The Record Clerk
Vernacular Section
Madurai Bench of Madras High Court,
Madurai.
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R.PONGIAPPAN, J.
MPK
Pre-Delivery Judgment made in
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