JUDGMENT :

K.MURALI SHANKAR, J.

This Civil Miscellaneous Appeal is directed against the order passed in I.A.No.395 of 2019 in O.S.No.103 of 2019, dated 11.10.2023, on the file of the District Court, Karur.

2. The appellant is the plaintiff. He filed a suit against the first respondent/defendant for recovery of Rs.36,86,250/- due on promissory note dated 01.02.2017, executed by the defendant in favour of the plaintiff. The petitioner/plaintiff also filed an application invoking Order 38 Rule 5 C.P.C., seeking attachment of the two petition mentioned properties before the judgment in I.A.No.395 of 2019 against the defendant and one Muthukumar – second respondent herein.

3. The case of the plaintiff is that the first respondent/defendant borrowed a sum of Rs.25,00,000/- from the petitioner/plaintiff on 01.02.2017 and executed a promissory note agreeing to repay the same with interest at 0.05 paise per hundred per day either to him or to his order on demand, that the first respondent despite repeated demands of the petitioner, has not repaid any amount towards principal or interest, that the petitioner, in the meanwhile, came to know from one Maniyarasu that the respondent has been making hectic attempts to alienate “A” schedule properties in favour of the third parties to defeat and defraud the loan amount, that the petitioner also came to know that the first respondnet has alienated “B” schedule properties in favour of the second respondent on 04.03.2019 with malafide intention to defeat the rights of the petitioner and the said document was created fraudulently by both the respondents to defeat the rights of the creditors and that therefore, he was constrained to file the above petition seeking attachment before the judgment.

4. The first respondent/defendant filed a counter statement. But the second respondent remained exparte. The learned trial Judge, after enquiry, passed an order dated 18.04.2022 allowing the petition and ordering attachment of the petition mentioned properties before the judgment. It is further evident that both “A” and “B” schedule properties came to be attached on 02.06.2022 and the attachment was made absolute on 06.06.2022. It is further evident that subsequently, after full fledged trial, the learned District Judge passed a judgment and decree dated 31.03.2023, decreeing the suit as prayed for.

5. Thereafter the second respondnet filed an application to condone the delay under Section 5 of the Limitation Act for filing a petition to set aside the exparte order and also a petition under Order 9 Rule 13 C.P.C., for setting aside the exparte order in I.A.No.7 of 2023 and I.A.No.8 of 2023 respectively and after enquiry, both the petitions came to be allowed vide orders dated 11.04.2023 and 30.06.2023 respectively. In pursuance of the same, the petition for attachment before judgment in I.A.No.395 of 2019 was restored to file as against the second respondent. The second respondent filed a counter statement opposing the prayer for attachment before judgment, contending that he had purchased the 'B' Schedule property from the first respondent under a sale deed dated 04.03.2019, much prior to the institution of the suit. He further contended that he had not been impleaded as a party to the suit and that an order of attachment before judgment would not affect the pre- existing rights of a person who had acquired title prior to the institution of the suit and who was not a party to the proceedings. It was, therefore, contended that the petition seeking attachment before judgment, insofar as it related to the second respondent and the 'B' Schedule property purchased by him prior to the filing of the suit, was not maintainable and was consequently liable to be dismissed.

6. The learned Principal District Judge, after enquiry, passed the impugned order dated 11.10.2023, partly allowing the petition and dismissed the petition as against the second respondent in respect of “B” schedule properties and also attachment in res