Madras High Court
Ammavasai vs Tulasikannu on 29 June, 2017
Author: R.Subramanian
Bench: R.Subramanian
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 29.06.2017
CORAM
THE HONOURABLE MR.JUSTICE R.SUBRAMANIAN
C.M.S.A.(MD)No.6 of 2008
and
M.P(MD)No.1 of 2008
Ammavasai ... Appellant/Appellant/
Petitioner
Vs.
1.Tulasikannu
2.Thangaraj ... Respondents/Respondents/
Respondents
Prayer: Appeal filed under Order XLI read with Section 100 of the Code of
Civil Procedure, against the fair and decreetal order dated 07.09.2007 passed
in C.M.A.No.4 of 2006 on the file of the Additional Subordinate Judge,
Dindigul, in confirming the fair and decreetal order dated 02.12.2004 passed
in I.A.No.96 of 2004 in O.S.No.205 of 2004 on the file of I Additional
District Munsif, Dindigul.
!For Appellant : Mr.H.Lakshmi Shankar
^For Respondents : Mr.A.R.Sethupathy for R.1
No appearance for R.2
:JUDGMENT
This Civil Miscellaneous Second Appeal arises in execution proceedings. The first respondent had filed a suit against the second respondent for recovery of money. The said suit was filed on 14.09.1999 along with an application for attachment before judgment. The trial Court directed the second respondent to furnish security on 14.09.1999. Since the security was not furnished, the properties were directed to be attached on 19.07.2000. On coming to know about the attachment, the appellant filed an application in I.A.No.96 of 2004 under Order 38 Rule 8 of the Code of Civil Procedure, seeking adjudication of his claim.
2. According to him, the second respondent sold the property which is the subject matter of attachment, to him on 15.09.1999 and the sale deed has been registered on 23.09.1999. Therefore, according to him, the attachment of the property made thereafter is not valid and sought for raising the attachment. The said application was resisted by the first respondent, namely, the plaintiff contending that the appellant/claimant had knowledge of the fact that the second respondent was indebted to her and she had also issued a notice as well as a telegram to the wife of the claimant informing her about the debts due to her from the second respondent as well as the institution of the suit.
3. According to her, the notice was issued on 20.08.1999 and the telegram was issued on 17.09.1999. Therefore, according to the first respondent/plaintiff, the appellant/claimant had purchased the property with the knowledge of the existence of debt and attachment.
4. The trial Court heard the application and concluded that since there was no agreement for sale prior to Ex.A.1 ? sale deed and the fact that the sale deed has been registered only on 23.09.1999, would show that there had been some kind of collusion between the parties and hence, the claim application was rejected.
5. Aggrieved by the same, the appellant has preferred an appeal before the lower appellate Court in C.M.A.No.4 of 2006. The lower appellate Court would conclude that though the property was sold on 15.09.1999, the sale would be affected by Doctrine of lis pendens, because the suit was filed on 14.09.1999 itself. On the said conclusion, the lower appellate Court dismissed the appeal.
6. As against the same, the present Civil Miscellaneous Second Appeal has been filed.
7. The following substantial questions of law have been framed at the time of admission of the appeal:
?1.Whether the conclusion of the courts below that sale is hit by doctrines of lis-pendens (Section 52 T.P.Act) in view of the pendency of money suit and pendency of an application for attachment is sustainable in law?
2. Whether the findings of the Courts below, in imputing malafide and fraudulent transfer to Appellants sales, in sustainable in view of section 53 of T.P.Act??
8. I have heard Mr.H.Lakshmi Shankar, learned Counsel for the appellant and Mr.A.R.Sethupathy, learned Counsel for the first respondent. The second respondent has been served by way of substituted service, but there is no representation on behalf of him.
Substantial Question of Law No.(i):
9. Mr.H.Lakshmi Shankar, learned Counsel for the appellant would invite my attention to the judgment of this Court in Pinna Thevar v. M.S.Maniam and another reported in 2006(5) CTC 245, wherein this Court had held that once the sale deed has been executed and registered prior to the order of attachment, Section 64 of the Code of Civil Procedure cannot be attracted and the property that has been sold cannot be attached pursuant to the decree that has been passed in the said suit.
10. After extracting Section 64 of the Code of Civil Procedure, this Court had observed as follows:
?9. Section 64 of the Code of Civil Procedure will apply only in a case where the attachment has been made prior to the sale of the property to a third-party. Here, in this case, it is found that the sale deed was executed on 21.10.2003 and the same was registered on 27.10.2003 whereas the order of attachment was passed on 14.11.2003 and the same was effected only on 25.11.2003. As the sale deed has already been executed and the same was registered long prior to the order of attachment, Section 64 of the Code of Civil Procedure will not apply to the facts and circumstances of this case.?
11. The learned Counsel for the appellant would also draw my attention to the judgment of the Honourable Supreme Court in Hamda Ammal v. Avadiappa Pathar and others reported in 1991-2-L.W. 110, wherein the Honourable Supreme Court had pointed out that even though the sale deed is registered after the attachment, it would take effect from the date of execution and even in such a case, where the sale deed is registered after attachment, but execution of the sale deed is prior to the attachment, the attachment will not prevail and the sale deed would prevail.
12. In view of the above categorical pronouncements of this Court and the Honourable Supreme Court, I am constrained to hold that the attachment which was actually ordered on 19.07.2000 has to give way to the rights of the appellant/claimant.
13. The learned Counsel for the first respondent would contend that the appellant/claimant was aware of the pendency of the suit. He would rely upon Ex.R.2, which is shown to have been sent to the wife of the appellant/claimant on 20.08.1999, but no acknowledgment is produced. The said notice that was sent to the second respondent ? Thangaraj was returned as 'unclaimed'. The fate of notice sent to the wife of the claimant is not known. The other documents relied upon by him are receipts, showing the sending of two telegrams on 17.09.1999. Even the telegram sent to Thangaraj, is shown to have been returned 'unserved' under Ex.R.4. But, the fate of the telegram that is claimed to have been sent to the appellant/claimant is not known. The receipts produced do not disclose the name of the person to whom the telegrams were sent.
14. The learned Counsel for the first respondent would draw my attention to the oral evidence of P.W.1, wherein he has admitted that the first respondent was present at the time of negotiations, but the said evidence is clear and categorical inasmuch as he says that though the first respondent was present during the negotiations, the first respondent did not inform that the second respondent ? Thangaraj was indebted to him. Therefore, in the absence of any evidence to impute knowledge of the borrowal or institution of the suit on the appellant/claimant, I do not think that it could be stated that the sale transaction is mala fide.
15. The lower appellate Court has reached a novel conclusion that the sale is affected by Doctrine of lis pendens. Section 52 of the Transfer of Property Act, reads as follows:
?52. Transfer of property pending suit relating thereto. - During the [pendency] in any Court having authority [ [within the limits of India exluding the State of Jammu and Kashmir] or established beyond such limits] by [the Central Government] [***] of [any] suit or proceedings which is not collusive and in which any right to immovable property is directly and specifically in question, the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under any decree or order which may be made therein, except under the authority of teh Court and on such terms as it may impose.?
(emphasis supplied.)
16. It is fundamental principle of law that Section 52 of the Transfer of Property Act would be attracted only when a right to immovable property is directly and specifically in question. Needless to say that in a money suit, no such right can be said to be directly or specifically or even remotely in question. So, the first substantial question of law is answered in favour of the appellant/claimant and the lower appellate Court was not right in holding that the sale deed will be hit by Doctrine of lis pendens.
Substantial Question of Law No.(ii):
17. For the second substantial question of law, the judgment in Pinna Thevar v. M.S.Maniam and another reported in 2006(5) CTC 245, is a direct answer. In order to invoke the provisions of Section 53 of the Transfer of Property Act, a plurality of the creditors is a must and a single creditor cannot invoke Section 53 of the Transfer of Property Act.
18. It is not shown that the second respondent was indebted to several other persons and the sale deed was, in fact, executed with a view to delay or defeat the creditors without consideration.
19. In P.Srinivasan v. Suseelabai and 2 others reported in 1991 ? 2 ? L.W. 404, this Court had expressed a similar view. The Honourable Mr.Justice Srinivasan, as he then was, had observed as follows:
?6. ... Under S.53 of the Transfer of Property Act, the primary requisite is that the impugned transfer should be to delayor defeat the general body of creditors and not an individual creditor. In the absence of any plea that there were more creditors than one, S.53 of the Transfer of Property Act cannot be invoked by the plaintiff.?
20. It is this view that has been followed by the Honourable Mr.Justice M.Jeyapaul in the judgment in Pinna Thevar v. M.S.Maniam and another reported in 2006(5) CTC 245.
21. In the light of the above proposition of law declared by this Court, I find that the second question of law also needs to be answered in favour of the appellant/claimant.
22. In the result, this Civil Miscellaneous Second Appeal is allowed and the judgment and decree of the Courts below are set aside and the attachment effected against the subject property on 19.07.2000, is raised. No costs. Consequently, the connected civil miscellaneous petition is closed.
To
1.The Additional Subordinate Judge, Dindigul.
2.The I Additional District Munsif, Dindigul.
3.The Section Officer, V.R.Section, Madurai Bench of Madras High Court, Madurai.
.