C.M.A.(MD)No.1084 of 2014

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/ Petitioners 2-4/

Third Party/ Third Party

Vs.

1.S.Kalimuthu

.. 1^st Respondent/ 1^st Respondent/

Decree Holder/ Plaintiff

2.R.Gunasekaran

.. 2^nd Respondent/ 2^nd Respondent/

Judgment Debtor/ Defendant

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 with

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

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C.M.A.(MD)No.1084 of 2014

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

relati