IN THE HIGH COURT OF JUDICATURE AT MADRAS Orders Reserved on 08.02.2024 Orders Pronounced on 08.04.2024 CORAM:

THE HONOURABLE MR.JUSTICE P.DHANABAL C.M.A.(MD) No.550 of 2014 and M.P.(MD) No. 1 of 2014 Marimuthu Nadar Karuppatti Kadai, Rep. by its Properitor, M.Kumaran, No. 174, Sagunipalayam Road, Ellis Nagar, Dharapuram Town & Taluk, Erode District. ...Appellant Vs

1. G.S.Usha

2. Gopalakrishnan

3. Sivakumar ....Respondents Prayer: Civil Miscellaneous Appeal filed under Order 43 Rule (1) r/w 96 of Civil Procedure Code, to allow this Civil Miscellaneous Appeal by set aside the Fair and Decreetal order dated 01.02.2014 passed in E.A.No. 252 of 2009 in E.P.No. 17 of 2009 in O.S.No. 31 of 2007 on the file of the District Court, Nagercoil.

For Appellant : Mr.R.Thangapandian For R1 : Ms. Jessi Jeeva Priya For R2 & R3 : Mr.P.Prabhakaran

JUDGMENT

This Civil Miscellaneous Appeal has been preferred as against the order passed in E.A.No. 252 of 2009 in E.P.No. 17 of 2009 in O.S.No. 31 of 2007 on the file of the District Court, Nagercoil, wherein the first respondent herein has filed the petition before the Executing Court in E.A.No. 252 of 2009 to decide the claim and right of the petitioner over the property under Order 21 Rule 58 and Section 151 of Civil Procedure Code. The Executing Court has allowed the petition and attachment order was raised in respect of the petition mentioned property. Against the said order, the present CMA has been preferred by the appellant/first respondent/Plaintiff.

2. The brief facts of the petition filed before the Executing court are as follows:-

The first respondent had filed a suit as against the second and third respondents in O.S.No.31 of 2007 on the file of the Additional District Court (Fast Track Court), Dharapuram for recovery of money. The petitioner is not a party to the said proceedings. The second respondent herein has settled the property in favour of the petitioner on 22.12.2004 and the petitioner had no knowledge of the business transactions between the first and second respondents. The first respondent knowing very well that the property belongs to the petitioner through settlement deed had attached the property through Court order. On the date of attachment, the property was not in the name of the second respondent and the same was in the name of the petitioner. Therefore the attachment order is not binding upon the petitioner. Therefore she filed this claim petition to raise the attachment.

3. The brief averments of the counter filed by the first respondent/decree holder are as follows.

The petition is not maintainable either in law or on facts and the petitioner is doing palm jaggery business. The second respondent is the father of the third respondent. The second and third respondents had business transactions with the first respondent from 06.04.2001 to 20.08.2004. Due to that business transaction, the second and the third respondents are liable to pay sum of Rs.8,51,869/- to the first respondent/plaintiff. The first respondent has filed a suit in O.S.No. 31 of 2007 on the file of the Additional District Court (Fast Track Court), Dharapuram and also filed the application in I.A.No.24 of 2007 for attachment before judgment and the same was also allowed and the suit was also decreed in favour of the first respondent/plaintiff. The attachment order was passed on 27.11.2007 for a sum of Rs.11,56,247/-. The schedule property originally belongs to the second respondent/first defendant and in order to defeat the valuable rights of the first respondent/plaintiff, the second respondent/first defendant executed the nominal deed in favour of the petitioner only in order to evade from the liability to the decree which is to be passed in favour of the first respondent/plaintiff. Since the property was given to the petitioner as gift, she is liable to pay the debts of the donor of the second respondent/first defendant under Section 128 of Transfer of Property Act, 1882. The petitioner colluded with the second