COMMON JUDGMENT

(Judgment of the Court was made by DR.G.JAYACHANDRAN, J.)

These Civil Miscellaneous Appeals are directed against the order passed by the trial Court in the Interlocutory Applications filed by the third party [second respondent in both the appeals], to raise attachment before judgment and succeeded.

2.The brief facts common to both the appeals are as follows:-

(i) One Rajasekaran, who is the first respondent in both the appeals alleged to have borrowed a sum of Rs.25,00,000/- on 16.04.2008 from one R.S.Gandhi, the plaintiff in O.S.No.46 of 2010. He has not repaid the loan amount, despite promise to pay the same with interest on demand, on executing a Pro-note. After issuance of the pre-suit notice, the suit in O.S.No.46 of 2010, for recovery of Rs.31,10,833/- was filed before the Principal District Court, Virudhunagar District at Srivilliputhur.

(ii) Similar suit was instituted against Rajasekaran by K.Thirumalaivadivu, W/o.R.S.Gandhi, in O.S.No.47 of 2010, on the file of the Principal District Court, Virudhunagar at Srivilliputhur, alleging that he borrowed a sum of Rs.20,00,000/- on 22.05.2008 and promised to repay it with interest at Rs.1/- per Rs.100/- per month. Despite execution of the pro-note for the money borrowed, he failed to repay the money and therefore, suit for recovery of Rs.24,64,666/- filed after issuance of pre-suit notice.

(iii) In both the suits, the respective plaintiffs have taken out the interlocutory applications viz., I.A.No.125 of 2010 in O.S.No.46 of 2010 and I.A.No.126 of 2010 in O.S.No.47 of 2010, for attachment before judgment of the house property of the defendant Rajasekaran [first respondent]. These applications for attachment before judgment on the first day of hearing, i.e., 30.04.2010 was considered by the trial Court and the respondent Rajasekaran was directed to furnish security for a sum of Rs.45,00,000/- on or before 08.06.2010, failing which, attachment by 08.06.2010. The first respondent after receiving the summons in the suit and notice in the attachment before judgment applications, did not appear before the Court either in person or through the counsel. Hence, the trial Court allowed the applications on 08.06.2010 and made the attachment absolute on 25.06.2010.

(iv) While so, S.Baskaran, the second respondent herein has filed third party applications viz., I.A.No.380 of 2010 in O.S.No.46 of 2010 and I.A.No.381 of 2010 in O.S.No.47 of 2010 under Order 38 Rule 8 and Order 21 Rule 58 of C.P.C., to adjudicate his claim and title over the petition mentioned property and raise the attachment.

(v) The affidavit of S.Baskaran filed in support of these applications states that the said Baskaran, the third party/petitioner and Rajasekaran, the defendant in both the suits [first respondent] are carrying on Hardware Business in Rajapalayam. In view of their business and family relationship, goods worth Rs.37,50,000/- was supplied to Rajasekaran on credit basis on various dates. When the third party/ petitioner Baskaran approached Rajasekaran to clear the dues, he delayed the payment and later agreed to sell his residential property, which is the subject matter of the present application.

(vi) Pursuant to the said promise, a sale agreement was entered between them on 10.07.2009 before the Notary Public, Srivilliputhur. As per the sale agreement, Rajasekaran agreed to clear the Bank loans and assured to hand over the scheduled property without any encumbrance. Believing his words, the third party/petitioner waited for a period of two months. Rajasekaran requested to pay Rs.5,00,000/- to the Bank and assured to execute the sale deed as promised earlier and also will re-pay Rs.5,00,000/-. Therefore, he agreed to pay the remaining Rs.30,00,000/- and received the original documents from the Bank. The same was reduced into writing in the presence of the Bank Manager. Subsequently, Rajasekaran failed to execute the sale deed and tried to sell the property to the third parties, hence, a suit in