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IN THE HIGH COURT OF JUDICATURE AT MADRAS
G. JAYACHANDRAN, J.
Saradhammal and Others – Appellants
Versus
Sankaralingam – Respondent
S.A. No. 858 of 2010, M.P. No. 1 of 2010
Decided On : 24-11-2020
Evidence Act – Section 114 – Transfer of Property Act – Section 52 – Code of Civil Procedure, 1908 – Section 100, Section 64, Order 38 Rule 5, Order 41 Rule 27 – Relief of declaration of title and injunction – Second Appeal is filed under Section 100 of C.P.C. praying against the judgment and decree of the Court of the Sub Judge, Vellore in A.S. No. 84 of 1994 dated 26.02.1997 in reversing the well considered judgment and decree in O.S. No. 191 of 1982 and dated 31.03.1994 on the file of the District Munsif Court, Gudiyatham. – Appellants herein are the plaintiffs in the suit filed for declaration and injunction in respect of the property purported to have been purchased by one Arumugam bonafidely and for due consideration from Subramani and Krishnan under the sale deed dated 30.10.1973. – The vendors of Arumugam got the property from one Syed Usuf Sahib vide sale deed dated 15.05.1968. – Arumugam took the possession of the property and made improvement over it. – He died a year before the suit. – After his demise, the property devolved upon the appellants being his legal heirs. – Alleging that the respondent herein attempted to trespass into the suit property on 12.11.1981 claiming title, the suit filed for the relief of declaration of title and injunction. – Held, Order 38 Rule 5 of C.P.C. provides to prevent the Act of deceit by alienating the property pending suit. Section 64 of C.P.C. declares any private alienation when attachment in force as a void transaction. – Section 52 of Transfer of property Act, prohibits transfer of property affecting the right or interest of the other parties pending suit. – If one read section 64 of C.P.C. and Section 52 of the Transfer of Property Act, along with Order 38 of C.P.C. will invariable come to the conclusion that, in the instant case, the transfer of an immovable property under attachment with knowledge about the attachment has to fall. – Delivery warrant dated 07.11.1981 is marked as Ex.B.2. – Thereafter, he took possession of the property through Court on 10.11.1981 vide Ex.B.1. Being the Court auction purchaser the title or his right to get possession of the auction purchased property cannot be deprived. – The attachment before judgment and Court Auction sale are judicial Acts and are to be presumed to have been performed regularly under Section 114 (e) of the Evidence Act. In the absence of contra evidence in the nature of rebuttal, the respondent’s right conferred by the Act of the court cannot be taken away by the violator of the Court order or his representatives. – Trial Court has admitted Ex.B.6 as additional document after hearing both sides. – It has given cogent reason for admitting it in evidence. Ex.B.6 is the suit register extract of the previous proceedings in respect of the suit property. – Being a record of the Court, even without marking it, the Court is empowered to call for the Court records and take judicial notice of the content. – There is no procedural error or illegality found in marking the additional document in the appeal exercising the power under Order 41 Rule 27 of C.P.C. – There is specific prohibition in Order 21 Rule 54 of C.P.C. to create charge or alienation of the property under attachment. – Therefore, the First Appellate Court is right in holding the transfer of attached property by private sale through Ex.B.4 followed by Ex.A.1 as nullity. – The sale in the Court auction on 16.06.1981 is consequence to the execution of decree passed in O.S. No. 24 of 1968 dated 28.06.1969. – The property was under attachment through out. – The suit culminated on confirmation of the decree by the High Court in S.A. No. 504/1972 dated 30.04.1975. Thereafter, the execution petition E.P. No. 127 of 1981 is filed to bring the attached property for sale. – In the said legal and factual circumstances, the divesting of attached property by Yusuf to obstruct and delay the execution of decree is void. For all purpose, in the eye of law the title stays with Yusuf. – Second Appeal Dismissed
Ratio Decidendi:
Private alienation of immovable property under attachment before judgment is void under Section 64 CPC, particularly when the parties to the transaction had knowledge of the attachment, as evidenced by an express recital in the sale deed itself; no further proof of the attachment order or its proclamation under Order 21 Rule 54(2) CPC is required in such cases, and Section 52 TPA reinforces the prohibition on transfers pendente lite that affect rights of parties to the suit.[21001375250012][21001375250014][21001375250015][21001375250017] (!) (!)
Court auction sales pursuant to execution of a decree, where the property remained under continuous attachment, confer valid title on the auction purchaser, with judicial acts like attachment before judgment and auction presumed regular under Section 114(e) Evidence Act absent rebuttal evidence; void private transfers cannot divest this title, which in the eyes of law remains with the judgment debtor.[21001375250016][21001375250017] (!)
Admission of additional evidence such as a suit register extract under Order 41 Rule 27 CPC at the appellate stage is permissible when cogent reasons are provided, especially for court records of which judicial notice may be taken even without formal marking.[21001375250011] (!)
JUDGMENT :
G. JAYACHANDRAN, J.
Prayer: Second Appeal is filed under Section 100 of C.P.C. praying against the judgment and decree of the Court of the Sub Judge, Vellore in A.S. No. 84 of 1994 dated 26.02.1997 in reversing the well considered judgment and decree in O.S. No. 191 of 1982 and dated 31.03.1994 on the file of the District Munsif Court, Gudiyatham.
1. The appellants herein are the plaintiffs in the suit filed for declaration and injunction in respect of the property purported to have been purchased by one Arumugam bonafidely and for due consideration from Subramani and Krishnan under the sale deed dated 30.10.1973. The vendors of Arumugam got the property from one Syed Usuf Sahib vide sale deed dated 15.05.1968. Arumugam took the possession of the property and made improvement over it. He died a year before the suit. After his demise, the property devolved upon the appellants being his legal heirs. Alleging that the respondent herein attempted to trespass into the suit property on 12.11.1981 claiming title, the suit filed for the relief of declaration of title and injunction.
2. The respondent herein contested the suit stating that one Syed Yusuf Sahib, who was the original owner of the property borrowed Rs. 1,300/- from one Duraisamy Mudaliar. To recover the said money Duraisamy Mudaliar filed O.S. No. 24/1968 on the file of District Munsif Court at Thirupattur. There was an order of attachment before judgment in respect of the suit property pending suit. The suit reached its finality when the Second Appeal filed by the judgment debtor/Syed Yusuf Sahib dismissed on 30.04.1975 by the High Court. Thereafter, the suit property was brought for auction sale by the decree holder. The respondent herein purchased the suit property for Rs. 2,510/- in the Court auction dated 10.06.1981, held pursuant to the execution petition. The auction sale was confirmed and sale certificate was issued to him on 15.09.1981. Thereafter, he took possession of the property through Court on 10.11.1981. Being the Court auction purchaser and had validly taken delivery of the property through Court, the suit for declaration of title is not maintainable since the transaction of the property under attachment pending litigation is void.
3. The Trial Court held that the defendant failed to prove the fact that the suit property was under court attachment on the 15.05.1968 when Syed Yusuf sold the property to Subramani and Krishnan. The plaintiff’s predecessor-in-title Arumugam, who purchased the property on 30.10.1973 had taken possession of the property and revenue records are mutated in his name. He had improved the land by getting electricity connection and installing motor pumpset. After his demise, the plaintiffs are in possession of the property. Therefore, the sale deed dated 30.10.1973 is valid and the title over the property had duly passed to the predecessor of the plaintiffs. Regarding possession, taking note of the documents such as Chitta, Adangal, Patta, demand notice from Electricity Board, Consumption Bills supporting the possession and enjoyment by the plaintiffs, the Trial Court held that the delivery of possession through Court as recorded in Ex.B.1 is only a paper delivery.
4. Aggrieved by that the defendant preferred First Appeal. Before the First Appellate Court, the suit register extract of O.S. No. 24 of 1968 was admitted into evidence as additional document Ex.B-6. The First Appellate Court, after considering the sequence of events, arrived at the conclusion that, in the money suit O.S. No. 24/1968 filed by Doraisamy Mudaliar against Syed Yusuf Sahib ABJ was ordered in respect of the suit property. The suit was first decreed ex-parte on 31.05.1968. Later, at the instance of the defendant, the ex-parte decree was set aside. After full trial, the suit was allowed and decree passed on 28.06.1969. The vendors of Arumugam had purchased the property from Syed Yusuf Sahib on 15.05.1968 under Ex.B-4. In this sale deed, the recital refers ab
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