BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT RESERVED ON : 08.06.2023 PRONOUNCED ON : 15.06.2023 CORAM THE HONOURABLE MR.JUSTICE R.VIJAYAKUMAR C.M.A(MD)No.736 of 2018 and CMP(MD).No.8323 of 2018 N.Palanisamy ...Appellant vs.

1.M.Madasamy

2.Lakshmi

3.Krishnamoorthy ...Respondents PRAYER:- Civil Miscellaneous Appeal filed under Section 104 of C.P.C r/w Order 21 Rule 58 of C.P.C, to set aside the order and decreetal order dated 24.04.2018 in E.A.No.77 of 2016 in E.P.No.9 of 2015 in O.S.No.146 of 2010 on the file of the Principal District Judge, Tirunelveli and allow this civil miscellaneous appeal as prayed for.

For Appellant : Mrs.AL.Ganthimathi Senior Counsel For Mr.C.Mahadevan For R1 & R2 : D.Nallathambi For R3 : No appearance

JUDGMENT

The present appeal has been filed by the decree holder in O.S.No.

146 of 2010 challenging the order under which a claim under Order 21 Rule 58 of Civil Procedure Code was allowed by the Execution Court.

2.The appellant herein as plaintiff had filed O.S.No.146 of 2010 before the Principal District Court, Tirunelveli for the relief of recovery of money of Rs.15,00,000/- based upon dishonour of a cheque. In the said suit, an order of attachment before judgement of the property in dispute was passed on 14.12.2010 and made absolute on 19.04.2011. The suit was decreed on 27.03.2004. The plaintiff had filed E.P.No.9 of 2015 to bring 10 items of property for sale. Out of 10 items, the first item in the schedule of execution proceedings is the property in dispute.

3.Pending execution proceedings, respondents 1 and 2 herein who are third parties to the suit had filed E.A.No.77 of 2016 under Order 21 Rule 58 C.P.C to declare that the said property belongs to them and for rasing the order of attachment dated 07.02.2011.

4.The said application was resisted by the appellant herein by contending that after having full knowledge about the order of attachment, the third parties have purchased the property and they are not bonafide purchasers. However, the Executing Court had allowed the said application. Challenging the same, the present appeal has been filed by the decree holder/plaintiff.

5.The contentions of the learned Senior Counsel appearing for the appellant are as follows:

(i).The purchasers are residing nearby plaintiff's house and they very well know about the cheque dishonour cases pending before the Magistrate Court and also the steps taken by the plaintiff to recover the said amount. In fact, the order of attachment obtained by the plaintiff was also informed to the claim petitioners.

(ii).Having full knowledge about the encumbrance and the Court order of attachment, they have purchased the property and they are not bonafide purchasers.

(iii).The attachment before judgement order passed by the trial Court has been duly registered in the encumbrance certificate and therefore, the claim petitioners cannot contend that they were not aware of the order of attachment .

(iv).The value of the property is more than Rs.10 lakhs and in order to defeat the rights of the plaintiff, a sale deed has been executed by the defendant in favour of the claim petitioners for a paltry sum of Rs.4,85,000/-. The said documents are executed and registered in a fraudulent manner.

(v).The learned Senior Counsel had further contended that the transaction is clearly hit by the provisions of Section 52 of the Transfer of Property Act and therefore, the sale deed dated 16.12.2010 in favour of the claim petitioners may be declared as fraudulent, unlawful and invalid.

(vi).The learned Senior Counsel had relied upon Order 21 Rule

54(3) of C.P.C. to contend that the order of attachment will take effect from the date of order and not from the date of knowledge of the claim petitioners. The claim petitioners were very well aware of the order of attachment being adjacent owner of the plaintiff and therefore, in view of the said provisions, the claim petitioners cannot contend that they came to know about the order of attachment only when it was entere