C.R.P(MD)No.1401 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Dated : 28.09.2022
CORAM:
THE HONOURABLE MR.JUSTICE B.PUGALENDHI
C.R.P(MD)No.1401 of 2021
and
CMP(MD)Nos.7898 of 2021 and 7763 of 2022
Jeya Thiruvadi ... Petitioner
Vs
Ashokan ... Respondent
PRAYER: Civil Revision Petition is filed under Section 115
of Civil Procedure Code, to set aside the fair and
decreetal order passed in E.A.No.2 of 2021 in E.P.No.15 of
2015 in O.S.No.62 of 2014 on the file of the Additional
District Judge, Tirunelveli dated 03.07.2021.
For Petitioner : Mr.T.S.R.Venkatramana
For Respondents : Mr.K.Jeyamohan
for Mr.K.Prabhu
ORDER
This civil revision petition is filed as against the order passed by the learned IV Additional District Judge, Tirunelveli in E.A.No.2 of 2021 in EP.No.15 of 2015 in O.S.No.62 of 2014, dated 03.07.2021.
1/10 https://www.mhc.tn.gov.in/judis C.R.P(MD)No.1401 of 2021
2.The petitioner had filed an application in E.P.No.15 of 2015 that the property described in the execution petition belongs to him. The respondent/decree holder filed the above suit in O.S.No.62 of 2014 as against one Jeyaravi for recovery of money and the same was decreed in his favour on 23.12.2014. The respondent/ decree holder subsequently filed an execution petition in E.P.No.15 of 2015 and also filed an application for attachment and sale of the immovable property of the judgment debtor Jeyaravi. The suit property, according to this petitioner, was purchased by him by way of a registered document on 20.06.2014, even before passing an order of attachment. He also filed an application to lift the attachment in E.A.No.56 of 2015, which was dismissed by the learned IV Additional District Judge, Tirunelveli on 30.07.2018. Therefore, the petitioner has filed a suit in O.S.No.352 of 2019 before the Principal Sub Court, Tenkasi under Order VII Rule 1 and Order XXI Rule 58 (5) CPC to set aside the attachment. The respondent/ decree holder has also appeared in the suit and filed his written statement. The respondent attempted to sell the attached property and therefore, the petitioner has filed the present 2/10 https://www.mhc.tn.gov.in/judis C.R.P(MD)No.1401 of 2021 application in E.A.No.2 of 2021 under Order XXI Rule 59 CPC to stay the sale, but it has been dismissed by the Court by its fair and decreetal order dated 30.07.2021. Aggrieved over the same, the present civil revision petition is filed along with a civil miscellaneous petition in CMP(MD)No.7763 of 2022 to receive certain documents on behalf of the petitioner and to mark them as Ex.P1 to Ex.P11 in the civil revision petition. This civil miscellaneous petition has also been taken up along with the main revision petition for hearing.
3.The learned Counsel for the petitioner submits that the disputed property originally belongs to one Jeyaravi/ the judgment debtor in O.S.NO.62 of 2014. The said Jeyaravi executed a settlement deed of the disputed property in favour of his wife Deivakani by registered document No.1106 of 2013, dated 21.03.2013. The said Deivakani in turn settled the property to her sister one Tamil Selvi, wife of one Periyasamy. This Periyasamy was a guarantor to a loan borrowed by Jeyaravi before the Tamil Nadu Mercantile Bank. The petitioner brother of Jeyaravi is said to have settled the dues of Periyasamy. Therefore, Tamil Selvi, wife of 3/10 https://www.mhc.tn.gov.in/judis C.R.P(MD)No.1401 of 2021 Periyasamy sold the disputed property to this petitioner by a registered sale deed on 20.06.2014, vide document No.2172 of 2014. In the meantime the respondent herein has filed the above suit in O.S.No.62 of 2014 against the judgment debtor Jeyaravi for recovery of money based on the promissory note executed by Jeyaravi. Jeyaravi remained ex-parte in the suit and therefore, the suit was decreed on 23.12.2014. Subsequently the respondent / decree holder filed an execution petition in E.P.No.15 of 2015 before the learned Additional District Judge, Tirunelveli on 23.04.2015 and also filed an application in E.A.No.56 of 2015 to attach the petitioner's property. The attachment was also ordered on 16.09.2015. The petitioner filed an application to resist the attachment. However, the same was dismissed on 30.07.2018. Thereafter the petitioner has filed the above suit in O.S.No.352 of 2019 before the Principal Sub Court, Tenkasi to set aside the attachment order under Order XXI Rule 58(5) CPC and the same is pending. Therefore, by referring the same, petitioner has filed the above petition in E.A.No.2 of 2021 under Order XXI Rule 59 CPC to set aside sale of the property and the 4/10 https://www.mhc.tn.gov.in/judis C.R.P(MD)No.1401 of 2021 same is dismissed that the petition mentioned property is advertised for sale in the execution petition, the petitioner could have filed the petition before the advertisement for sale and also on the ground that earlier the application filed by this petitioner to lift the attachment in E.A.No.56 of 2015 was dismissed by the Court on 30.07.2018 and therefore, the petitioner cannot maintain the present application under Order XXI Rule 59 CPC.
4.The learned Counsel for the petitioner submits that he is having a good case in O.S.No.352 of 2019, which is pending on the file of the Principal Sub Court, Tenkasi and if the property is sold pending the suit, the right of the petitioner would be affected.
5.The learned Counsel for the respondent submits that this petition is filed at the instance of the judgment debtor and this petitioner is none other than own brother of the judgment debtor. The judgment debtor in order to defeat the claim of the respondent/ decree holder has created settlement deed in favour of his wife one Deivakani, who in turn created further settlement deed in 5/10 https://www.mhc.tn.gov.in/judis C.R.P(MD)No.1401 of 2021 favour of her sister Tamil Selvi from, whom the petitioner has purchased the property on 20.06.2014. After filing of the suit in O.S.No.62 of 2014, the petitioner filed an application in E.A.No.56 of 2015 to lift the attachment. The application was elaborately discussed and dismissed on 30.07.2018, as against which, the petitioner has not preferred any appeal and the same has become final and therefore, on the very same set of facts, the petitioner is not entitled to file the present application. Therefore, there is no reason to interfere with the impugned order.
6.This Court considered the rival submissions and perused the materials placed on record.
7.The petitioner claims that he has purchased the suit property on 20.06.2014 by way of a registered document from one Tamil Selvi in discharge of his liability for the payments made by this petitioner before the Tamil Nadu Mercantile Bank. The property was attached by the executing court in E.A.No.56 of 2015 in E.P.No.15 of 2015 on 16.09.2015 on the pretext that it is the property, which belongs to Jeyaravi/ the judgment debtor, ie., after the 6/10 https://www.mhc.tn.gov.in/judis C.R.P(MD)No.1401 of 2021 petitioner purchased the property on 20.06.2014. The petitioner's attempt to lift the attachment failed and therefore, under Order XXI Rule 58(5) of CPC, the petitioner has filed the suit before the Principal Sub Judge, Tenkasi in O.S.No.352 of 2019, which is pending. The respondent / decree holder has also entered appearance in the suit and has also filed his written statement. Whether the deed dated 20.06.2014 is valid consideration or it is sham and nominal document is to be decided by the trial Court in O.S.No.352 of 2019. Pending the suit the petitioner has filed the above application under Order XXI Rule 59 CPC which reads as follows:
“Stay of sale:- where before the claim was preferred or the objection was made, the property attached had already been advertised for sale, the Court, may -
(a) if the property is movable, make an order postponing the sale pending the adjudication of the claim or objection, or,
(b)if the property is immovable, make an order that, pending the adjudication of the claim or objection, the property shall not be sold, or, 7/10 https://www.mhc.tn.gov.in/judis C.R.P(MD)No.1401 of 2021 that pending such adjudication, the property may be sold but the sale shall not be confirmed, and any such order may be made subject to such terms and conditions as to security or otherwise as the Court thinks fit.”
8.The executing Court has dismissed the application that the property for attachment had already been advertised for sale and the claim application filed to lift the attachment in E.A.No.56 of 2015 was denied by the Court on 30.07.2018. This Court is not in agreement of the reasons assigned in the impugned order and accordingly the impugned order is set aside. There shall be an order of interim stay of the sale of the disputed property pending disposal of O.S.No.352 of 2019.
9.Considering the grievance of the respondent / decree holder that he obtained the decree in the year 2015, but the same could not be executed in view of the pendency of the suit in O.S.No.352 of 2019 and in view of the above direction of this Court in this petition, this Court directs the learned Principal Sub Judge, Tenkasi to dispose 8/10 https://www.mhc.tn.gov.in/judis C.R.P(MD)No.1401 of 2021 of the suit in O.S.No.352 of 2019 within a period of six months from the date of receipt of a copy of this order. The parties shall extend their co-operation for the trial, without taking any further adjournments in the suit.
10.Accordingly this civil revision petition and the civil miscellaneous petitions stand disposed of. There is no necessity for these documents to be filed before this Court, Registry shall return the documents filed in CMP(MD)No.7763 of 2022 to the petitioner enabling him to mark these documents in O.S.NO.352 of 2019. No costs.
28.09.2022 dsk To The Additional District Judge, Tirunelveli.
9/10 https://www.mhc.tn.gov.in/judis C.R.P(MD)No.1401 of 2021 B.PUGALENDHI, J.
dsk C.R.P(MD)No.1401 of 2021 28.09.2022 10/10 https://www.mhc.tn.gov.in/judis