Madras High Court
Vellapandi (Died) vs K.S.Maheshwari ... 1St on 11 April, 2017
Author: R.Subramanian
Bench: R.Subramanian
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 11.04.2017
CORAM
THE HONOURABLE MR.JUSTICE R.SUBRAMANIAN
C.M.S.A.No.7 of 2004
and
C.M.P.No.2225 of 2004
1.Vellapandi (died) ... Appellant/1st Respondent/
1st Respondent/Plaintiff
2.V.Sundarammal
3.V.Palanisamy
4.V.Muthuganesan
5.G.Santhana Mariammal
6.A.Arumugathai
7.S.Samuthiram
8.S.Sudalaimuthu @ Sudarmani ... L.Rs., of the deceased
sole appellant
(Appellants 2 to 8 are brought on record as L.Rs., of the deceased sole
appellant, vide order dated 14.11.2011 made in M.P(MD)No.3 of 2011 in
C.M.S.A.No.7 of 2004.)
Vs.
1.K.S.Maheshwari ... 1st Respondent/Appellant/
Petitioner/Third Party
2.Guruvammal ... 2nd Respondent/2nd Respondent/
2nd Respondent/Defendant
PRAYER: Appeal filed under Order 21 Rule 58(4) of the Code of Civil
Procedure, against the judgment and decree dated 16.09.2003 passed in
A.S.No.57 of 2003 by the learned Subordinate Judge, Sankarankoil, in
reversing the judgment and decree dated 23.06.2003 passed in E.A.No.7 of 2003
in E.P.No.1 of 2001 in O.S.No.119 of 1997 by the learned District Munsif cum
Judicial Magistrate, Sivagiri.
!For Appellants : Mr.G.Venugopal
^For Respondents : Mr.F.X.Eugene for R.1
No appearance for R.2
:JUDGMENT
The decree holder is the appellant. This appeal arises out of an execution proceedings. The appellant had obtained two money decrees against the second respondent in O.S.No.119 of 1997 for a sum of Rs.15,000/- (Rupees Fifteen Thousand only) on 12.01.1998 and in O.S.No.124 of 1997 for a sum of Rs.15,000/- (Rupees Fifteen Thousand only) on 02.02.1998.
2. The appellant filed E.P.No.94 of 1998 seeking execution and in execution, the property was attached on 17.01.1998 and attachment was made absolute on 27.01.1998. Since the said attachment order was not registered in the Sub Registrar's Office, the plaintiff filed a fresh petition and execution petition in E.P.No.94 of 1998 was dismissed for default.
3. The plaintiff filed two fresh execution petitions in E.P.No.1 of 2001 in O.S.No.119 of 1997 and E.P.No.2 of 2001 in O.S.No.124 of 1997. The said execution petitions were filed on 09.01.2001 and an order of attachment came to be passed on 16.04.2001. During the interregnum, the judgment debtor, namely, the second respondent sold the property to the first respondent/third party on 31.01.2001. The first respondent/third party, namely, the subsequent purchaser has filed an application in E.A.No.7 of 2003 in E.P.No.1 of 2001 in O.S.No.119 of 1997 seeking to raise the attachment on the ground that he has purchased the property without knowledge of the pending proceedings. There being no attachment in force on 31.01.2001, the sale in his favour is valid.
4. The trial Court heard E.A.No.7 of 2003 and concluded that the sale deed dated 31.01.2001, is not a bona fide document and it has been brought about the intention to defeat the rights of the decree holder. This, in my opinion, is wholly incorrect. In a claim petition, the Court is concerned only with the validity or otherwise of the attachment.
5. In the absence of an attachment, the question whether the sale was bona fide or not, cannot be gone into. If at all that could be done, it could be only under Section 53 of the Transfer of Property Act by a comprehensive suit filed on behalf of the body of the creditors.
6. Aggrieved by the said order made in E.A.No.7 of 2003, the first respondent filed an appeal before the Sub Court, Sankarankoil, in A.S.No.57 of 2003. The learned Sub Judge, by his judgment dated 16.09.2003, allowed the appeal and raised the attachment.
7. Aggrieved by the same, the decree holder has filed this appeal. During the pendency of this appeal, the sole appellant died and his legal representatives have been brought on record as per the order of this Court dated 14.11.2011 passed in M.P(MD)No.3 of 2011 in C.M.S.A.No.7 of 2004.
8. At the time of admision of this appeal, the following substantial questions of law have been framed by this Court:
?1. Whether the findings of the lower appellate Court by failure to consider the absence of any evidence on the side of the 1st respondent establishing that transaction under Ex.A.3 is a bona fide transaction?
2. Whether the lower appellate Court is right in assuming tht the transaction under Ex.A.3 is not intended to defraud the creditors in the absence of any evidence especially when the 2nd respondent initiated insolvency proceedings to declare her insolvent long before Ex.A3?
3. Whether the lower appellate Court is correct in holding that there are no provision under the Insolvency Act to hold the transaction under Ex.A3 is invalid during the pendency of the insolvency proceedings??
9. It is clear from the facts that there was no attachment on the date when the sale was efffected, namely, on 31.01.2001.
10. The learned Counsel for the appellant would rely upon the judgment of the Honourable Supreme Court in C.S.Mani v. B.Chinnasamy Naidu reported in (2011) 3 MLJ 506 (SC) and would contend that the attachment made in the year 1998 would continue despite the dismissal of the execution petitions.
11. No doubt, it is true that the dismissal of the execution petition for default of the decree holder will not have the effect of terminating the attachment. But, in the case on hand, there was no valid attachment in the year 1998. It is an admitted case that the attachment order was not communicated to the Sub Registrar in terms of Order 38 Rule 11 as well as Order 21 Rule 58A of the Code of Civil Procedure.
12. In Sri Krishna Chit Funds (Sattur Private Limited), Sattur, having its Office at Door No.19, Pillaiyar Koil St. Sattur Town and Taluk, through its Managing Director, Tmt.R.Umayal v. R.S.Pillai reported in 2000 (2) CTC 524, this Court considered the effect of the provisions of Order 21 Rule 58A of the Code of Civil Procedure and it was held that the order of attachment, which is not communicated to the Registrar in terms of Order 21 Rule 58A of the Code of Civil Procedure, is invalid and the failure to comply with the requirements of Order 21 Rule 58A of the Code of Civil Procedure will vitiate the entire attachment. The said judgment is followed in Humbi Hema Gooda v. The Tamil Nadu State Transport Corporation (CBE) Ltd., reported in 2012 (1) CTC 407. In the said judgment, the learned Judge after referring to the judgment of the Honourable Mr.Justice P.Sathasivam (as he then was) reported in2000 (2) CTC 524 (referred to supra), has concluded as follows:
?13. The principles enunciated in the said decision would show that communicating the order of attachment to the concerned registering officer is mandatory under Order 38 Rule 11-B and in the absence of communication, the order of attachment has no force. Under these circumstances, I am of the opinion that since the order of attachment itself is void, the submission made by the learned counsel for the 1st respondent, relying upon section 64 cannot be countenanced.?
13. In view of the above categorical pronouncements of this Court and in the light of the factual position that there was no valid attachment on the date of sale, the lower appellate Court was right in concuding that the sale will have to be upheld in favour of the first respondent.
14. As far as the substantial questions of law framed at the time of the admission relating to the bonafideness or otherwise of the sale deed, I am of the considered opinion that the said questions cannot be gone into in a proceeding under Order 21 Rule 58 of the Code of Civil Procedure. If at all, the appellant wants to raise a claim that the sale is made with an intention to defeat the creditors, that has to be done by way of a separate suit under Section 53 of the Transfer of Property Act, that too, in a suit instituted on behalf of the general body of creditors.
15. This Court has taken a view that the suit under Section 53 of the Transfer of Property Act would not be maintainable at the instance of a single creditor. Therefore, the substantial questions of law framed do not really arise for consideration in this appeal.
16. In the result, this Civil Miscellaneous Second Appeal is dismissed. No costs. Consequently, the connected civil miscellaneous petition is also dismissed.
To
1.The Subordinate Judge, Sankarankoil.
2.The District Munsif cum Judicial Magistrate, Sivagiri..