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2008 Supreme(Mad) 3643
High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE V. DHANAPALAN
S.S. Karthikeyan
Versus
Sivasalam & Another
C.R.P.(NPD) No.2871 of 2008
Decided on: 30-09-2008
For the Petitioner:T. Murugamanickam, Advocate.
For the Respondents:N. Manokaran, Advocate.
Ratio:
a. There is no presumption of malafide against any purchaser of property pendent lite.
b. If there is a possibility of bonafide on the part of a third party purchaser of property, his claim has to be decided after full enquiry.
Headnote:Code of Civil Procedure, 1908.(Act 5 of 1908) Order 21, Rule 58, 58-A and Order 38, Rule 11-B-Property attached by Court-Attachment not reflected in Encumbrance certificate-Petitioner bonafide purchased for value-Order of attachment not entered in Encumbrance certificate-Purchaser claims ignorance of proceedings-No evidence to show that the purchaser had knowledge of the suit and order of attachment-Petitioner to be given opportunity to prove his claim and bonafide-Revision allowed.
Mere presumption of collusion 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. Para 9
. 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. Para 10
1. 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
