A.Rajendiran vs R.Ganesan
2021 Latest Caselaw 9291 Mad

                                                                                 C.R.P.(MD).No.321 of 2021


                          BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                                DATED: 08.04.2021

                                                       CORAM:

                          THE HONOURABLE MR.JUSTICE K.MURALI SHANKAR

                                            C.R.P.(MD).No.321 of 2021
                 A.Rajendiran                              ... Petitioner/Petitioner/Plaintiff


                                                           Vs.


                 R.Ganesan                                 ... Respondent/Respondent/Defendant



                 Prayer: Civil Revision Petition filed under Article 227 of the Constitution of

                 India, against the order dated 23.12.2020 passed in I.A.Sr.No.3437 of 2020 in

                 O.S.No.38 of 2018 on the file of the Principal District Court, Srivilliputhur.

                                      For Petitioner       : Mr.R.Vijayakumar

                                      For Respondent       : No Appearance

                                                       ORDER

This Civil Revision Petition is directed against the returning of the

petition for attachment before judgment in I.A.S.R.No.3437 of 2020 in O.S.No.

38 of 2018 on the file of the Principal District Court, Srivilliputhur.

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C.R.P.(MD).No.321 of 2021

2.Heard the learned counsel for the petitioner. Despite the service of

notice and printing of his name in the cause list, he has not chosen to appear in

person or through any counsel.

3.Admittedly, the petitioner has filed a suit on promissory note and

the same was taken on file on 30.08.2018 on the file of the Principal District

Court, Virudhunagar District at Srivilliputhur. During the pendency of the suit,

the revision petitioner has filed an application under Order 38 Rule 5(3) of CPC

seeking orders to attach the properties shown in items 1 to 6 and the learned

District Judge has returned the petition on three grounds which includes that

the properties in the name of the defendants to be produced, for which the

revision petitioner has represented the petition stating that items 1 to 5 of the

properties were originally belonging to the defendant and before filing the suit,

he transferred the same in favour of his wife by executing a settlement deed and

that for the other return that the title deed in respect of item No.6 to be

produced, the revision petitioner has represented stating that the said item of

property is their ancestral property and that there is no document available.

Thereafter, the Principal District Court has again returned the same reiterating

the earlier returns and despite the production of the citation of this Court

reported in 2018 (2) L.W. 328 with respect to Fraudulent Transfer. A Division

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C.R.P.(MD).No.321 of 2021

Bench of Bombay High Court in SBI Home Finance Limited Vs. Credential

Finance Limited and others reported in 2001 (2) ALL MR 1 has held that the

application for attachment before judgment in respect of property already

transferred to the 3rd party before filing of the suit, if it is contended that the

sale being collusive to avoid creditor was hit by Section 53 of the Transfer of

Property Act, is legally maintainable and that such property can still be

attached. The revision petitioner has taken a specific stand that the properties

shown in the application for attachment before Judgment were owned by the

defendant and after execution of promissory note and before filing of the suit,

he has settled the properties purposely in favour of his wife. Whether the above

factual aspects are true or not can not be gone into at this stage and the same

can be gone into at the enquiry in the application for attachment before

Judgment.

4.Hence, this Court is of the view that the continuous returning of the

petition by the trial Court is not proper and is not accordance with law.

Consequently, the trial Court is to be directed, to take the petition on file, if it is

otherwise in order, conduct enquiry and to pass orders in accordance with law.

5.In the result, this Civil Revision Petition is allowed and the learned

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C.R.P.(MD).No.321 of 2021

Principal District Judge, is directed to take the petition on file, if it is otherwise

in order and to conduct enquiry and pass orders in accordance with law. No

costs.

08.04.2021 Index : Yes / No Internet: yes / No TM

To

1.The Principal District Judge, Virudhunagar District at Srivilliputhur.

2.The Section Officer, E.R/V.R.Section, Madurai Bench of Madras High Court, Madurai.

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C.R.P.(MD).No.321 of 2021

K.MURALI SHANKAR, J.,

TM

C.R.P.(MD).No.321 of 2021

08.04.2021

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