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2019 Supreme(Mad) 3126
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
J. NISHA BANU, J.
T. Kumaresan – Appellant
Versus
Stellabai and Others – Respondents
C.M.S.A. (MD) No. 8 of 2018, C.M.P. (MD) Nos. 4404, 4405 of 2018
Decided On : 14-11-2019
Advocate Appeared:
For the Appellant : R. Murugan.
For the Respondents: G. Mohan Kumar, M.P. Senthil.
Headnote:
Civil Procedure Code, 1908 - Section 100 - Rule 58 - Order 21 - Tamil Nadu Registration Act - Sections 72 and 83 - Sale-deed was returned - Compromise - Subsequently respondent herein filed stating that he is purchaser of entire second schedule from appellant herein on for total sale consideration and due to attachment order Sub Registrar Ernie returned document and as he has paid valid sale consideration and he is interested in item of property he sought to raise item of property from attachment - During pendency of said petition original defendant died and hence present respondent was bring on record as sole legal heir – Held, Where claim or an objection is preferred and Court proviso to sub rule refuses to entertain it party against whom such order is made may institute suit to establish right which he claims to property in dispute but subject to result of such suit if any an order so refusing to entertain claim or objection shall be conclusive - From above provision it is clear that claim petition filed Order can be maintained if property attached has not already been sold - Order Rule - Empowers Court to conduct fully fledged enquiry into all questions including questions relating to right title or interest in property attached - Rule empowers Court to pass any order as in circumstances case it deems fit – Therefore it cannot be contended that Order Rule - Court has no power to issue direction to register sale deed - As stated earlier in this case appellant himself admitted that he has sold item of property to respondent herein after purchase from judgment debtor - Hence first appellate Court based on joint memo filed by first and third respondents herein raised item of property from attachment and directed Sub Registrar to register sale deed as per law - Word as per law has wider connotations - Therefore there is no need to interfere with order passed by first appellate Court - Thus question of law is answered against appellant – Appeal dismissed
JUDGMENT :
J. NISHA BANU, J.
Prayer: Appeal filed under Order 21 Rule 58(4) r/w Section 100 of C.P.C. against the judgment and decree dated 18.08.2017 passed in C.M.A. No. 28 of 2016 by the District Court, Kanyakumari District at Nagercoil, reversing the fair and decreetal order dated 21.06.2016 passed in E.A. No. 73 of 2015 in E.P. No. 65 of 2008 in O.S. No. 41 of 2005 by the Subordinate Court, Padmanabhapuram.
1. This appeal has been filed by the appellant against the judgment and decree dated 18.08.2017 passed in C.M.A. No. 28 of 2016 by the District Court, Kanyakumari District at Nagercoil, whereby and whereunder the Court below has reversed the finding of the trial Court in E.A. No. 73 of 2015 in E.P. No. 65 of 2008 in O.S. No. 41 of 2005 based on the joint Compromise memo and allowed E.A. No. 73 of 2015 filed for raising attachment of 2nd item of property and directed to issue intimation with regard to raising of attachment of item No. 2 of the property to the Registration Department and further directed to register the Document No. 25 of 2006 alleged to have been executed between the appellant herein and the 3rd respondent herein in respect of the 2nd item of property as per law.
2. The first respondent herein as plaintiff has filed the suit in O.S. No. 41 of 2005 for recovery of Rs. 1,35,000/- with future interest against one T. Murugesan/original defendant, who is the husband of the 2nd respondent herein. During the pendency of the trial, two items of properties of the original defendant were attached before judgment in I.A. No. 144 of 2005 on 12.08.2005 at the instance of the first respondent/plaintiff. The suit was decreed as prayed for on 12.06.2006. The first respondent/plaintiff/decree holder filed execution petition in E.P. No. 65 of 2008 for recovery of the decree amount by bringing the attached properties for sale. While so, the appellant herein/3rd party filed E.A. No. 79 of 2012 stating that the original defendant/judgment debtor has sold the 2nd item of the property to him much before the attachment before judgment on 06.08.2004 and he, in turn, executed a sale-deed in favour of the 3rd respondent herein, but the same has been returned in view of the order of attachment and therefore, the attachment of the 2nd item of property may be raised. But, the said application was dismissed for default on 12.12.2014. Subsequently, the 3rd respondent herein filed E.A. No. 73 of 2015 stating that he is the purchaser of entire second schedule from the appellant herein on 15.03.2006 for a total sale consideration of Rs. 60,984/- and due to attachment order, the Sub Registrar, Eraniel, returned the document No. 25 of 2006 and as he has paid valid sale consideration and he is interested in the 2nd item of property, he sought to raise the 2nd item of property from attachment. During the pendency of the said petition, the original defendant died and hence, the present 2nd respondent was bring on record as the sole legal heir.
3. The trial Court has dismissed E.A. No. 73 of 2015 holding that though the sale-deed was returned on 15.03.2006, the petitioner/third respondent has belatedly filed this petition and the petition was not filed with good intention. Aggrieved by the same, the 3rd respondent herein filed C.M.A. No. 28 of 2016. Before the first appellate Court, the first respondent herein/plaintiff and the third respondent herein filed a joint compromise memo and based on the same, the first appellate Court has set aside the order passed by the trial Court in E.A. No. 73 of 2015 and directed to issue intimation with regard to raising of attachment of 2nd item of the property to the Registration Department and further directed to register the Document No. 25 of 2006 alleged to have been executed between the appellant and the 3rd respondent herein in respect of the 2nd item of property as per law. Aggrieved by the last portion of the order passed by the first appellate Court to the effect that “the pending sale-deed in favour of
