Madras High Court
C.V.Anandan vs K.V.Easwaran on 13 December, 2021
CRP.NPD.No.723/2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 13.12.2021
CORAM:
THE HONOURABLE MR.JUSTICE S.S.SUNDAR
CRP.NPD.No.723/2019 & CMP.No.4695/2019
[Hybrid Mode]
C.V.Anandan .. Petitioner
Vs.
1.K.V.Easwaran
2.K.V.Kamala .. RR 1 & 2 /
judgment debtorss
3.T.S.T.Anand
4.E.Rajan
5.E.Sankar
6.B.T.Rajaram .. RR 3 to 6
Prayer:- Civil Revision Petition filed under Section 115 CPC against the fair
and decreetal order dated 27.09.2018 passed in REA.No.325/2016 in
REP.No.184/2007 in OS.No.246/2003 on the file of the learned I Additional
Subordinate Judge, Salem.
For Petitioner : Mr.P.Mani
For RR 1, 2, 4 & 5 : Mr.M.Ashwin Kumar for
Mr.V.Raghavachari
For R3 : Mr.Mukunth for
M/s.Sarvabhauman Associates
For R6 : Mr.V.Sekar
https://www.mhc.tn.gov.in/judis 1
CRP.NPD.No.723/2019
ORDER
(1) This Civil Revision Petition is directed against the order in
REA.No.325/2016 in REP.No.184/2007 in OS.No.246/2003 on the
file of the Court of the I Additional Subordinate Judge, Salem.
(2) The petitioner herein is the decree holder who had obtained a decree
in OS.No.246/2003 against the respondents 1 and 2 herein /
judgment debtors.
(3) It is stated by the petitioner that there was an order of attachment
before the judgment in IA.No.317/2003 and that the said order of
attachment was in force from 07.04.2003. The suit filed by the
revision petitioner was decreed on 10.07.2003. It is admitted by the
petitioner that the 3rd respondent also filed a suit for recovery of
money based on an equitable mortgage in OS.No.593/2003 on the
file of the Sub Court, Salem. The said suit was later transferred to
the Fast Track Court-I, Salem, and renumbered as OS.No.245/2004.
It is also admitted that the suit was later decreed on 31.07.2008 and
that in execution of the decree, the property was sold in favour of the
CRP.NPD.No.723/2019
6th respondent herein on 07.04.2010.
(4) The petitioner himself admitted that the petitioner to execute the
money decree, filed REP.No.184/2007 before the Sub Court, Salem.
Finding that the property which is the subject matter of attachment
before the judgment in his suit, had already been sold in favour of
the 6th respondent herein, the petitioner filed an application in
REA.No.325/2016 to implead the decree holder, judgment debtors
and the auction purchaser/6th respondent in OS.No.245/2004, in the
execution petition filed by the revision petitioner. That application
was dismissed by the Lower Court on the ground that the petitioner
cannot obtain any relief by impleading the proposed parties. Since
the realisation of amount by selling the properties against
respondents 1 and 2 is not possible in the present execution petition,
it is held by the Lower Court that the proposed parties are neither
necessary nor proper parties to decide the execution petition filed by
the petitioner. Aggrieved by the same, the present Civil Revision
Petition is filed by the revision petitioner herein.
(5) The learned counsel for the petitioner submitted that the proposed
CRP.NPD.No.723/2019
parties are necessary and proper parties so as to execute the decree
obtained by the revision petitioner against respondents 1 and 2. The
learned counsel submitted that a fraud had been played on the
petitioner. Indicating that the judgment debtors and the auction
purchaser, namely, the 6th respondent herein, had entered into an
agreement, it was stated that the petitioner is entitled to some relief
in case he establishes fraud in the sale proceeding initiated by the
decree holder in the other suit. The learned counsel further
submitted that the Lower Court had erred in holding that the decree
holder/petitioner herein cannot realise the decree amount in the
present execution proceedings by impleading the proposed parties
and therefore, the order of the Lower Court is not sustainable.
(6) This Court is unable to agree with any of the submissions made by
the learned counsel for the petitioner.
(7) It may be true that the revision petitioner herein has obtained a
money decree and there was an order of attachment with effect from
07.04.2003. An order of attachment pending suit though may
prevail over a private sale as contemplated under Section 64 CPC, it
CRP.NPD.No.723/2019
will not prevail over the sale in pursuant to the execution of another
decree.
(8) It is to be noted that under Order 38 Rule 10 CPC, an attachment
before judgment shall not affect the rights existing prior to
attachment of persons, not parties to the suit nor bar any person
holding a decree against defendant from applying for the sale of
property under attachment in execution of such a decree.
(9) In view of the specific provision under Order 38 Rule 10 CPC, this
Court is unable to accept the contention that the revision petitioner
can still proceed against the property which had already been sold in
execution of another decree. It is admitted that the proposed parties
are not parties to the order of attachment obtained by the petitioner
herein. Since the attachment before judgment obtained by the
petitioner is not binding on the decree holder and the auction
purchaser in the subsequent proceedings, this Court is unable to find
any merits in the application. The submission made by the learned
counsel for the petitioner that some fraud was played against the
petitioner herein may be established independently. It is not
CRP.NPD.No.723/2019
necessary for this Court to consider this issue.
(10) In such circumstances, this Court finds no merits in the Civil
Revision Petition.
(11) In the result, the Civil Revision Petition stands dismissed. No costs.
Consequently, connected miscellaneous petition is closed.
13.12.2021
AP
Internet : Yes
To
I Additional Subordinate Judge
Salem.
CRP.NPD.No.723/2019
S.S.SUNDAR, J.,
AP
CRP.NPD.No.723/2019
13.12.2021
https://www.mhc.tn.gov.in/judis 7
