JUDGMENT

The Civil Miscellaneous Appeal is directed against the order passed in I.A.No.110 of 2019 in O.S.No.82 of 2019 dated 23.01.2020 on the file of the Additional District Court, Kumbakonam.

2. The appellant is the first respondent/first defendant and the respondents

2 and 3 are the respondents 2 and 3/defendants 2 and 3 and that the first respondent is the petitioner/plaintiff in I.A.No.110 of 2019 in O.S.No.82 of

2019 on the file of the Additional District Court, Kumbakonam.

3. The first respondent/plaintiff has laid the above suit for recovery of Rs.50 lakhs with interest and costs against the appellant/first defendant. The first respondent/plaintiff has also filed an application under Order 38 Rule 5 of Code of Civil Procedure seeking attachment of the petition mentioned property in I.A.No.110 of 2019. The appellant/first defendant as well as the respondents 2 and 3/defendants 2 and 3 have filed their counter statement opposing the claim for attachment before judgment. The learned Additional District Judge, after enquiry, has passed the impugned order dated 23.01.2020 allowing the application and ordered attachment of the petition mentioned property before judgment. Aggrieved by the said order, the first defendant has come forward with the present appeal.

4. For the sake of convenience and brevity, the parties herein-after will be referred as per their status / ranking in the trial Court.

5. Admittedly, the defendants 2 and 3 are husband and wife and the first defendant is the son of the defendants 2 and 3.

6. The case of the plaintiff is that the first defendant borrowed a sum of Rs.56,50,000/- on several occasions and remitted a sum of Rs.7 lakhs to the plaintiff, that the first defendant, in order to discharge the above debt, has issued a post dated HDFC Bank cheque bearing No.0003 dated 01.11.2016 for Rs.50 lakhs on 27.10.2016 in favour of the plaintiff, that when the cheque was presented for collection, the same was returned 'dishonored' for want of sufficient funds in the bank account of the first defendant, that the plaintiff has then sent a legal notice on 26.11.2016 demanding payment of the amount covered by the cheque, that the first defendant, having received the notice on 15.12.2016, has neither sent any reply nor made any payment, that therefore, the plaintiff was constrained to file a complaint in S.T.C.No.776 of 2017 before the concerned Judicial Magistrate Court, that subsequently, the plaintiff and the defendants 1 and 2 have entered into a compromise and wherein, the defendants voluntarily offered to execute a sale deed in favour of the plaintiff in respect of one of the apartment constructed in the petition mentioned property for Rs.75 lakhs, that the plaintiff, after coming to know that the apartment will fetch a sum of Rs.40 to 45 lakhs, refused to accept the offer, that the plaintiff came to know that the third defendant colluding with the defendants 1 and 2 has been attempting to sell the four apartments in the suit property with an intention to cheat and defraud the plaintiff and that therefore, the plaintiff is constrained to file the above suit for recovery of money and also the above application for attachment of the petition mentioned property before judgment.

7. It is the specific contention of the plaintiff that the suit property was purchased by the defendants 1 and 2 in the name of the third defendant, that the third defendant is only an ostensible owner and not the real owner of the suit property and that therefore, the suit property is liable to be attached before judgment.

8. The first defendant, in his counter statement, has admitted the existence of money transaction between him and the plaintiff, but he denied and disputed the balance amount of Rs.50 lakhs allegedly due by him and that the cheque was not issued by him and the same was fabricated by the plaintiff for the purpose of the suit.

9. According to the first defendant, the suit property is belonging to his mother, the third defenda