Madras High Court
M.Jahir Hussain vs M.Mohammed Nasurudeen on 23 August, 2021
1
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
RESERVED ON 03.12.2021
DELIVERED ON 05.01.2022
CORAM :
THE HONOURABLE MRS.JUSTICE S.ANANTHI
C.M.A.(MD).No.1016 of 2021
and
C.M.P.(MD)No.9432 of 2021
M.Jahir Hussain ...Appellant/ Respondent/Defendant
Vs.
M.Mohammed Nasurudeen ...Respondent/Petitioner/Plaintiff
PRAYER: Civil Miscellaneous Appeal filed under Order 43 Rule 1 of Civil
Procedure Code, to set aide the fair and decreetal order, dated 23.08.2021
made in I.A.No.1 of 2021 in O.S.No.359 of 2020 on the file of the Fast Track
Mahila Court, Dindigul and allow as prayed for.
For Appellant :Mr.K.K.Ramakrishnan
For Respondents :Mr.M.S.Suresh Kumar
ORDER
This Civil Miscellaneous Appeal has been filed to set aide the fair and
decreetal order, dated 23.08.2021 in I.A.No.1 of 2021 in O.S.No.359 of 2020
passed by the learned Fast Track Mahila Judge, Dindigul.
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2.The respondent/plaintiff has filed a petition in I.A.No.01 of 2021
under Order 38 Rule 5 of Civil Procedure Code for attachment before
Judgment. The respondent/plaintiff has filed a suit in O.S.No.359 of 2020 on
the file of the learned Fast Track Mahila Judge, Dindigul, for recovery of
money on the basis of a sale receipt/Ex.P.1. The Court below has partly
allowed the petition and ordered for attachment. Aggrieved by the same, this
appellant is before this Court.
3.Heard on either side. Perused the material documents available on
record.
4.The case of the respondent/plaintiff is that the petition mentioned
properties are belonged to the respondent/defendant and his brothers and
sisters. The appellant herein had approached the respondent herein/plaintiff
with an intention to sell the 'A' schedule properties to him, by stating that it
was allotted to his share at the time of partition, for that both the petitioner
and the respondent has fixed the sale amount of the said 'A' schedule
properties at Rs.40,90,350/- and the appellant had received a sum of Rs.35
lakhs as advance amount of sale from the respondent herein, that the
appellant had also agreed to execute sale deed in favour of the respondent
herein within one month and also executed a Sale Advance Receipt on
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10.08.2019 in favour of the respondent herein/plaintiff. The appellant herein
had sold the petition mentioned 'A' schedule properties to the third parties
with an intention to cheat the respondent herein/plaintiff and he had acted
upon as against the contents found in the Sale Advance Receipt. Hence, the
respondent herein had filed a suit for recovery of sum of Rs.35 lakhs.
Further, the petition mentioned 'B' schedule properties are situated nearby the
'A' schedule properties, that they are also belonged to the appellant, that now
the appellant has been attempting to sell the same to the third parties, if do
so, the respondent herein/plaintiff couldn't collect the decree amount from the
appellant/defendant.
5.The appellant/respondent has filed counter and has stated that he
never executed the alleged Sale Advance Receipt in favour of the respondent
herein/plaintiff at any point of time as mentioned in the petition. The above
said documents fraudulently created one and it is not sustainable in law. The
appellant/defendant had not received any lawyer notice from the respondent
herein/plaintiff. The appellant never received any advance amount from the
respondent herein. The suit 'A' and 'B' schedule properties originally
belonged to the father of the appellant herein, namely; one Nainar
Mohammed by way of sale deeds dated 18.07.1990 and 31.08.1994 that they
were in possession and enjoyment of his father and after his demise, his legal
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heirs, including the appellant/defendant effected partition in respect of the
suit properties among them, that they sold the house sites to 8 persons each
one as per the sale deed dated 19.07.2019. The respondent has approached
the appellant, his mother, brothers and sisters and effected Sale Agreement
Deed dated 10.07.2018 in respect of the suit properties. Later compromise
was effected between both the parties and accordingly sale deed executed in
favour of the respondent/plaintiff and 7 others as requested by the
respondent/plaintiff. Thereafter, on 18.07.2019, the appellant herein had
effected Sale Agreement Cancellation deed and Advance Receipt
Cancellation deeds. There is no money transaction held in between the
appellant and the respondent in respect of the suit properties, and that there is
no connection between them with the suit properties.
6.Ex.P.1 was filed by the respondent/plaintiff is not a sale agreement.
It is only a receipt which was denied by the appellant. The respondent
herein has to prove the document only Ex.P.1 alleged to have been executed
regarding 'A' schedule properties alone. 'B' schedule properties no way
connected with the sale receipt. But, the appellant/defendant sold 'A'
schedule properties to the third party which was not denied by the
appellant/defendant.
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7.The suit was filed for recovery of money based on the sale receipt
more or less a sale agreement. If the receipt is proved by the
respondent/plaintiff then he is entitled to receive money. If the
appellant/defendant disposed all the property then the respondent/plaintiff
cannot execute the decree.
8.The relevant portion of the Judgment reported in 1996 LW 599, in
the case of N.Pappammal Vs. L.Chidambaram, is extracted hereunder:
.......
“In dealing with the applications for
attachment before Judgment, it is the first and
foremost duty of the Court to be satisfied from the
particulars made available that the defendant is
about to dispose of the whole or any part of his or
her property or he or she she is about to remove
the whole or any part of his or her property from
the local limits of the jurisdiction of the court with
a view to delay or defeat or obstruct the execution
or any decree that may be passed against him or
her. Therefore, the Court should issue a notice in
an appropriate Form coming to the requirements
of O38, R.5(1) C.P.C. And setting out the details
specified thereunder to the defendant, within a
time to be fixed by it, either calling upon him or
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her to furnish security in such sum as may be
specified in the order or to produce and place at
the disposal of the Court the property so specified
in the application or the value of the same, or even
such portion thereof as may be sufficient to meet
the decree, or the notice may merely direct the
defendant to appear and show cause why he or she
should not furnish security for the amount claimed
in the suit. No particular Form of notice in use for
this purpose has been brought to the notice of the
court except the one in Form No.5 in Appendix F,
which is really addressed to the bailiff by the
Court. It is, therefore, imperative in view of Order
38, R .5(4) C.P.C. that a notice on the lines of
Form No.5 in Appendix F with the necessary
changes conforming to the requirements of O 38,
R.5(1), C.P.C. should be prescribed for use. It is
necessary that this matter also should engage the
time and attention of the Rules Committee for
prescribing an appropriate form of notice
especially in view of the amendment introduced to
O.58, R.5, C.P.C by Act 104 of 1976.
A careful consideration of the provisions of
O.58 R.5(1) to (4) and O.38, R.6(1) and (2) C.P.C.
clearly brings out this real intention and purport
as well as the scope of these provisions. The
primary object of these provisions is no doubt to
see that an order of attachment before Judgment is
not secured in discriminately on insufficient
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grounds, but, at the same time, it is also manifest
that the defendant must be, wherever possible,
given an opportunity to stave off an attachment of
his or her property. The requirements under O.38,
R.5(1) C.P.C. have been designed only with the
view and the notice issued thereunder has also to
strictly conform to the requirements of O.38, R.
5(1) C.P.C. If the attachment is affected without
rigidly conforming to the requirements of O.38, R.
5(1) C.P.C. and fulfilling them O.38, R.5(4) C.P.C.
declares such an attachment as void. In this case,
there has been no compliance either in letter or
spirit with the earlier part or even the latter part of
O.38 R.5(1) C.P.C. and under O.38, R.5(4) C.P.C.
the attachment effected would be void and the
order of the Court below cannot be sustained. ”
9.In this case, Court directed the appellant/defendant to furnish
security and on the date he has not furnished security. Then only an order of
attachment was passed.
10.The learned counsel appearing for the appellant/defendant
contended that the sale receipt is not an agreement and also unregistered
document. So, it cannot be admissible in evidence. Eventhough, the sale
agreement is an unregistered document it can be used for collateral purpose.
The suit was filed only for recovery of money. Therefore, it can be issued.
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11.The relevant portion of the Judgment submitted by the
respondent/plaintiff in AIR 2000 MAD 213 in the case of Renox
Commercials Ltd Vs. Inventa Technologies Pvt. Ltd., is extracted hereunder:
.......
“24.The reading of the above provision
would make it clear that there are essential
requirements which must be proved to the
satisfaction of the court. They are as follows:-
(i)The defendant is about to dispose of the
whole or any part of his property; or
(ii)The defendant is about to remove the
whole or any part of his property from the local
limits of the jurisdiction of the Court;
(iii)That the defendant is intending to do so
to cause obstruction or delay in the execution of
any decree that may be passed against him, vague
and general allegations that the defendant is about
to dispose of the property or remove it beyond the
jurisdiction of the Court, unsupported by
particulars, would not be sufficient compliance
with the rule.
(iv)It is incumbent upon the plaintiff to state
the grounds on which he entertains the belief or
apprehension that the defendant would dispose of
or remove the property, or, to give the source of his
information and belief in the manner through an
affidavit”.
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12.In this case, the appellant/defendant has already disposed the
properties mentioned in the receipt. For non-production of security, an order
of attachment was passed.
13.The learned counsel appearing for the appellant/defendant argued
that a unsecured credit cannot be treated as secured credit. It is true. But, in
this case it is a secured credit with 'A' schedule properties which was
disposed by the appellant/defendant. Therefore, no infirmity in the order of
Attachment before Judgment.
14.The Court below has rightly passed order in I.A.No.1 of 2021 in
O.S.No.359 of 2020 and this Court has no valid reason to interfere with the
order.
15.Finally, this Civil Miscellaneous Appeal is dismissed by confirming
the fair and decreetal order, dated 23.08.2021 in I.A.No.1 of 2021 in O.S.No.
359 of 2020 passed by the learned Fast Track Mahila Judge, Dindigul. The
case in O.S.No.359 of 2020, already issued were framed. Hence, the learned
Fast Track Mahila Judge, Dindigul, is directed to disposed the suit, within a
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period of six months, from the date of receipt of copy of the order. No Costs.
Consequently, connected Miscellaneous Petition is closed.
Index :Yes/No 05.01.2022
Internet:Yes/No
ksa
Note:In view of the present lock down owing to COVID-19 pandemic, a web
copy of the order may be utilized for official purposes, but, ensuring that the
copy of the order that is presented is the correct copy, shall be the
responsibility of the Advocate/litigant concerned.
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To
The Fast Track Mahila Court,
Dindigul.
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S.ANANTHI, J.
ksa
Order made in
C.M.A.(MD).No.1016 of 2021
05.01.2022
https://www.mhc.tn.gov.in/judis
