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2025 Supreme(Online)(Mad) 36137
IN THE HIGH COURT OF JUDICATURE AT MADRAS
N. Sathish Kumar, J
Gunaseelan – Appellant
Versus
P.Perumal – Respondent
A.S.No.118 of 2025 | C.M.P.Nos.2563 & 2566 of 2025
For the Appellants/Petitioners: M/s.V.Srimathi
For the Respondents: Dr.A.Thiyagarajan, Senior Counsel for Mr.D.Senthil Kumar for R1 R2 and R3 – Service awaited R4 - No appearance
The doctrine of lis pendens applies to involuntary sales, ensuring that prior decrees for specific performance take precedence over later money decrees, especially when the attachment was not properly communicated.
Headnote:(A) Code of Civil Procedure, 1908 - Sections 64 and 52 - Doctrine of lis pendens - The appeal challenges the execution order allowing the first respondent's application under Order XXI Rule 97, citing that the appellant's title was established prior to the attachment and sale to the first respondent. The court found the attachment ineffective due to non-communication and ruled that the doctrine of lis pendens applied, favoring the appellant's prior decree for specific performance. (Paras 2, 6, 10, 28)
(B) Execution Proceedings - The court emphasized that an attaching creditor cannot obtain a superior title over the judgment debtor's rights at the time of attachment. The execution of a sale deed in favor of the appellant prior to the first respondent's attachment was upheld, dismissing the latter's claim. (Paras 12, 13)
(C) Collusion - The court determined that the money decree obtained by the first respondent was collusive, as the defendants had remained ex parte throughout the proceedings. (Paras 11, 19)
(D) Title - The court held that the appellant acquired better title than the first respondent due to the execution of the sale deed before the money decree was confirmed. (Paras 23, 28)
Findings of Court:
The order of the Executing Court was set aside, confirming the appellant's title and possession of the property.
Result: Appeal allowed.
| Table of Content |
|---|
| 1. factual background of the case. (Para 2) |
| 2. arguments regarding attachment and rights. (Para 3 , 4 , 5) |
| 3. court's analysis of collusion and lis pendens. (Para 6 , 7 , 8 , 9 , 10 , 11) |
| 4. procedural requirements for sale deeds. (Para 12 , 13 , 14) |
| 5. ratio decidendi regarding attachment and title. (Para 15 , 16) |
| 6. final observations on lis pendens and its application. (Para 17 , 18 , 19 , 20 , 21 , 22 , 23 , 24 , 25 , 26 , 27) |
| 7. conclusion and order of the court. (Para 28) |
JUDGMENT
Challenging the order passed by the Executing Court under Order XXI Rule 97(1) and (2), the present appeal came to be filed.
2. Brief facts in filing this appeal are as follows:
2.a. The appellant has filed a suit for specific performance in O.S.No.24 of 2013 to enforce the agreement dated 23.05.2012 executed by one Sivakumar (deceased). The suit has been filed against the legal heirs of the said Sivakumar. Before filing the suit, he has issued a notice dated 24.01.2013. As the defendants in the above suit remained exparte, the suit was decreed on 11.09.2013. Pursuant to the said decree and judgment, Execution Petition in E.P.No.247 of 2013 was filed. During the pendency of the said EP, the judgment debtors filed an application to set aside the judgment and decree dated 11.09.2013 along with the delay condonation petition. The said application has been dismissed on merits in I.A.No.2795 of 2014 dated 16.04.2015. Thereafter, it appears that the executing court on 04.03.2016 had executed the sale deed in favour the appellant and the Execution Petition was terminated. Subsequently, the appellant has filed another E.P.No.149 of 2016 for delivery of property and delivery was ordered and EP was terminated on 22.09.2016 by recording delivery.
2.b. In the meanwhile, the first respondent filed a suit for recovery of money for a sum of Rs.18,20,000/- together with interest in O.S.No.32 of 2016 on the basis of promissory note dated 12.02.2012. The said suit was filed on 25.03.2013. In the said suit, an application for attachment before the judgment was taken out in I.A.No.62 of 2013 and the said application was allowed on 19.06.2013 and the suit was decreed on 08.07.2013 and attachment order of judgment and decree in O.S.No.32 of 2013 was registered before the Sub-Registrar, Oulgarpet, Puducherry on 12.09.2013. The first respondent in pursuant to the exparte decree filed execution petition in EP.No.2019 of 2013 for realisation of decree amount and the property was put in court auction sale and he was permitted to bid for the court auction sale as per order in I.A.No.2451 of 2015 and granted permission to set off a sum of Rs.28,37,388.20 as per order dated 05.01.2016 and he was declared as a successful purchaser of the schedule property at the sale held for a sum of Rs.29,08,000/-. The first respondent deposited a sum of Rs.70,611.50/- towards the balance sale consideration and the sale has been confirmed on 21.03.2016 and sale certificate was issued on 22.04.2016 and the sale certificate was registered as document No.13935/2016 dated 14.06.2016. Thereafter, EP was filed in E.P.No.301/2016 for delivery of possession and the same was ordered on 01.02.2017. When Amin went to the schedule property on 16.02.2017, the appellant obstructed the delivery on the ground that property has already delivered to him by decree and judgment. At this stage, the application has filed under Order XX1 Rule 97 of Code of Civil Procedure by the first respondent to remove obstruction. That application was allowed and the same is challenged in this appeal.
2.c. Before the Executing Court, on the side of first respondent, the first respondent himself was examined as PW1 and marked Exs.P1 to P6. On the side of the appellants, the first appellant was examined as RW1 and marked Exs.R1 to R20.
2.d. Based on the oral and documentary evidences, the Executing Court has allowed the application on the ground that since sale in favour of the appellant is hit by Section 64 of Code of Civi
