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High Court of Judicature at Madras
R. SUBBIAH
Humbi Hema Gooda, Rep. By its Power Agent R. Krishnasamy @ Girikannan
Versus
M/s. The Tamilnadu State Transport Corporation (CBE) Ltd., Rep. by its Managing Director & Others
Civil Miscellaneous Appeal No. 1144 of 2011 & M.P.No. 1 of 2011
Decided on : 30-09-2011
Attachment - Validity of Order of Attachment - Order 38 Rule 5 C.P.C. - The court found that the order of attachment made on 31.01.1989 was not in accordance with the provisions under Order 38 Rule 5 C.P.C. and hence, it was not a valid attachment. The appellant was considered a bona fide purchaser of the property of the 4th respondent as the mandatory provisions under Order 38 Rule (4) and Rule(6) C.P.C. were not complied with by the court below and the order was not communicated to the Registering Officer, as required under Rule 11-B C.P.C. Therefore, the impugned order passed by the court below was set aside.
Fact of the Case:
The appellant Trust filed an appeal against the order of dismissal made by the learned Additional District Judge, Fast Track Court No.3, Coimbatore, in E.A.No.12 of 2010 in E.P.No.17 of 2009 in O.S.No.128 of 2002. The appellant Trust claimed to be a bona fide purchaser of a property that was under attachment by the 1st respondent Corporation.
Finding of the Court:
The court found that the order of attachment made on 31.01.1989 was not in accordance with the provisions under Order 38 Rule 5 C.P.C. and hence, it was not a valid attachment. The appellant was considered a bona fide purchaser of the property of the 4th respondent as the mandatory provisions under Order 38 Rule (4) and Rule(6) C.P.C. were not complied with by the court below and the order was not communicated to the Registering Officer, as required under Rule 11-B C.P.C. Therefore, the impugned order passed by the court below was set aside.
Issues: The issues were whether the order of attachment made by the court on 31.01.1989 was valid and whether the purchase made by the appellant from the 4th respondent on 24.04.1991 was void.
Ratio Decidendi: The court held that the order of attachment made on 31.01.1989 was not in accordance with the provisions under Order 38 Rule 5 C.P.C. and hence, it was not a valid attachment. The appellant was considered a bona fide purchaser of the property of the 4th respondent as the mandatory provisions under Order 38 Rule (4) and Rule(6) C.P.C. were not complied with by the court below and the order was not communicated to the Registering Officer, as required under Rule 11-B C.P.C.
Final Decision: The impugned order passed by the court below was set aside. E.A.No.12 of 2010 in E.P.No.17 of 2009 in O.S.No.128 of 2002 on the file of Additional District Judge, Fast Track Court No.III, Coimbatore, filed by the appellant trust was ordered as prayed for and the civil miscellaneous appeal was allowed; however, the first respondent was at liberty to take action against the 4th respondent for recovery of the amount by attaching the other properties owned by the 4th respondent. No costs.
1. Aggrieved by the order of dismissal made by the learned Additional District Judge, Fast Track Court No.3, Coimbatore, in E.A.No.12 of 2010 in E.P.No.17 of 2009 in O.S.No.128 of 2002 dated 08.02.2011, to raise the order of attachment, the appellant Trust has filed the present appeal before this Court.
2. The circumstances, which led the appellant to file the present appeal, are as follows:
(a) The 1st respondent herein, namely, Tamil Nadu State Transport Corporation (Coimbatore Division) filed a suit in O.S.No.80 of 1989 as against respondents 2 to 4 and 24 others for recovery of a sum of Rs.28,20,094.28 stating that during the period 1986 to 1988, the 1st respondent Corporation had disposed of 325 condemned vehicles through tender-cum-auction. Some of the defendants, who are the successful bidders, colluded with the officials of the Corporation, namely, the 1st and 2nd defendants in the suit, who were the Assistant and Deputy Manager (Traffic), had taken delivery of 55 vehicles without full payment/part payment, which caused loss to the Corporation to the extent of Rs.28,20,096.76. Hence, the Corporation has filed the said suit before the 1st
Additional Sub Court, Coimbatore against the officials arraying them as 1st and 2nd defendants and the other auction purchasers as defendants 3 to 27. The 4th respondent herein was the 3rd defendant in the suit. Pending suit, they filed an application under Order 38 Rule 5 C.P.C. to get an interim order of attachment before judgment and on 31.01.1989, they obtained the order of attachment before judgment of the immovable properties of some of the defendants, which included the property of the 4th respondent/3rd defendant. Subsequently, the said suit was transferred to the Fast Track Court No.3, Coimbatore and re-numbered as O.S.No.128 of 2002, wherein the suit was decreed on 10.09.2004 for a sum of Rs.27,70,092.09 against 15 defendants. Pursuant to the said decree, the 1st respondent Corporation, to realise a sum of Rs.10 lakhs and odd from the 4th respondent, has filed an execution petition in E.P.No.17 of 2009 against the 4th respondent herein, to pass an order of sale of the property already attached to an extent of 5.71 acres of Dhali Village, Udumalpet Taluk, Coimbatore District. But the 4th respondent did not appear before the court.
(b) At this juncture, the appellant Trust filed a petition under Order 21 Rule 58 C.P.C.
stating that they are the bona fide purchasers of the property from the said Nagaraj (3rd defendant) by a registered sale deed dated 24.04.1991. After purchase, in the said property Sri Gayathri Devi Temple and Vinayakar temple including Ashram have come up and they came to know about the order of attachment dated 31.01.1989 in I.A.No.50 of 1989 only after the 1st respondent Corporation filed the execution petition, after obtaining a decree in the suit.
(c) It is the case of the appellant before the court below that the order of attachment passed by the court below on 31.01.1989 is not in accordance with Order 38 Rule 5 C.P.C. since the 4th respondent/3rd defendant in the suit had not been called upon to furnish security for production of property before passing the order of attachment. Therefore, the order of attachment passed in I.A.No.50 of 1989 itself is void abinitio since the appellant trust are the bona fide purchasers of the property from the 4th respondent and thus, the attachment has to be raised by allowing the petition filed by the appellant herein.
(d) The said application was contested by the 1st respondent Transport Corporation stating that the property purchased by the appellant from the 4th respondent was attached as early as on 31.01.1989 itself. The 4th respondent is now colluding with the appellant in order to defeat the payment of the decree amount payable to the Corporation, has indirectly filed the application for raising the attachment. When the order of attachment is in force, the appellant ought not to have purchased the property
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