BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT Reserved On : 27.10.2021 Delivered On : 19.01.2022 CORAM THE HONOURABLE MRS. JUSTICE R. THARANI C.M.A.(MD)No.1084 of 2014 G.Kaliappan (Died)

1.Angammal

2.K.Thangavel

3.K.Selvam .. Appellants Vs.

1.S.Kalimuthu

2.R.Gunasekaran .. Respondents Prayer: This Civil Miscellaneous Appeal is filed under Section 43 of Rule 1 of Civil Procedure Code, to set aside the fair and decreetal order dated 06.09.2014 passed in E.A.No.13 of 2008 in E.P.No.32 of 2006 in O.S.No.252 of 2004 on the file of the learned I Additional District Judge (PCR) , Tiruchirappalli.

For Appellants : Ms.J.Anandhavalli For 1^st Respondent : Mr.V.Singan For 2^nd Respondent : Dispense up

JUDGMENT

This Civil Miscellaneous Appeal has been filed against the order passed in E.A.No.13 of 2008 in E.P.No.32 of 2006 in O.S.No.22 of 2004 on the file of the learned I Additional District Judge (PCR), Tiruchirappalli.

2.The appellants herein are third parties to the suit and the first respondent herein is the plaintiff and the second respondent herein is the defendant in the suit in O.S.No.252 of 2004. The first respondent herein has filed a suit in O.S.No.1012 of 2003 for recovery of money against the second respondent herein before the learned Sub Judge, Tiruchirappalli and later the same was transferred to the learned Additional District and Sessions Judge, Fast Track Court, Tiruchirappalli and was re- numbered as O.S.No.252 of 2004. The suit was decreed on 30.09.2005. The plaintiff has filed a petition in E.P.No.32 of 2006 for attachment of the petition mentioned property. During the pendency of the execution proceedings, the appellant herein has filed an application in E.A.No.13 of 2008 to raise the attachment over the petition mentioned property and the same was dismissed. Against which, the appellant has come forward with this appeal.

3.A brief substance of the application in E.A.No.13 of 2008 is as follows: 3.1. The petitioners are third parties to the suit and are the absolute owners of the schedule mentioned property. The petitioners purchased the property under a registered sale deed dated 21.10.2003. Ever since the date of purchase, the petitioners are in possession of the property. The petitioners came to know about the filing of the execution petition from the summon affixed on the outer wall of the property and came to know that the first respondent is attempting to attach the property. The first respondent attempted to attach the property at the time of trial and he has filed a petition in I.A.No.199 of 2004 and later the said petition was dismissed as not pressed. The first respondent is well aware that the property belong to this petitioners/third parties to the suit.

3.2. The petitioners have filed a petition in E.A.No.60 of 2007 on the file of the learned I Additional District Judge on 17.09.2007 questioning the right of the first respondent to proceed with the attachment. Without considering the pendency of that petition, the attachment order was passed by the Execution Court. The E.P is pending for production of sale papers. On the date of attachment on 14.11.2007, the second respondent is not the owners of the property. It is only the petitioners/third parties who are the owners of the property and they were in possession of the property on the date of attachment. The attachment is void and illegal and it has to be raised.

4.Brief substance of the counter filed by the first respondent therein is as follows:

The validity of the sale deed is denied. It is a sham and nominal transaction. The second respondent is a close friend and relative of the petitioners and they belong to the same community. The second respondent borrowed a sum of Rs.6,00,000/- (Rupees Six Lakhs only) from the first respondent and he executed a promissory note on 05.09.2001. Since the second respondent did not pay any amount to clear the debt, the first respondent filed a suit against the second respondent on 21.10.2003. He filed a petition in I.A.No.658 of