Madras High Court
Suseela vs Gopal on 4 February, 2021
C.R.P.No.124 of 2021
IN THE HIGH COURT OF JUDICATURE OF MADRAS
DATED: 04.02.2021
CORAM:
THE HONOURABLE MRS. JUSTICE V.BHAVANI SUBBAROYAN
C.R.P. No.124 of 2021
and
C.M.P.No.1155 of 2021
1.Suseela
2.Poomukilan
3.Vignesh ...Petitioners
Vs
1.Gopal
2.Shanmugam ...Respondents
PRAYER: Civil Revision Petition filed under Section 227 of Civil
Procedure Code to set aside the fair and decretal order dated 06.03.2020
passed in I.A.No.3 of 2019 in I.A.No.607 of 2018 in O.S.No.180 of 2018
on the file of the Sub-Court, Gobichettipalayam.
For Petitioner : Mr.K.Govi Ganesan
for Mrs.Raja Shama Gayathri
https://www.mhc.tn.gov.in/judis/
1
C.R.P.No.124 of 2021
ORDER
The limited prayer sought for in the present civil revision petition
to set aside the fair and decretal order dated 06.03.2020 passed in
I.A.No.3 of 2019 in I.A.No.607 of 2018 in O.S.No.180 of 2018 on the
file of the Sub-Court, Gobichettipalayam.
2. The plaintiff/first respondent had filed the suit directing the
defendant to pay a sum of Rs.5,24,800/- with future interest from the date
of suit till the date of realization and to direct the defendant to pay the
costs of the suit to the plaintiff.
3. The suit in O.S.No.180 of 2018 was filed for recovery of a sum
of Rs.5,24,800/- with interest from the respondent/defendant. Pending
the suit, the plaintiff had filed I.A.No.607 of 2018 seeking attachment of
the petition mentioned properties that is alleged to have been belonging
to the defendant. As the plaintiff came to know that the defendant is
trying to alienate the properties or encumber the properties, he
approached the Court by filing I.A.No.607 of 2018 under Order 38 Rule
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C.R.P.No.124 of 2021
5 and Section 123 of CPC seeking for attachment of the scheduled
mentioned property before passing any judgment. The respondent has
filed a detailed counter affidavit stating that the petition mentioned
properties are joint family properties and he cannot have any right over
the properties and already the properties in Item Nos.1,2 and 3 were sold
by the joint family on 11.09.2018 and the plaintiff cannot attach those
properties and the remaining 4 and 5 items were allotted to the share of
the respondent's brother. Hence, he is not the owner of the property and
the properties cannot be attached.
4. The Court below, after considering the rival submissions, had
found that the partition deed marked as Ex.B1 and Sale deeds have
marked as Ex.R2. It is also seen that the petitioner was not in possession
to furnish any security to the suit claim by the time granted as on
10.09.2018. The respondent stated that the notice dated 10.09.2018 was
not received by him. Subsequently, a fresh notice was ordered the
respondent received the notice on time. The respondent submitted that he
is not residing at that place, but residing elsewhere and produced a copy
of his Aadhaar Card to prove that he is staying in the residence. Hence,
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C.R.P.No.124 of 2021
the Court below had come to the conclusion that the properties sold to
third parties in Item Nos.1 to 3 are only after receiving the said notice
and with a knowledge of fixation of the suit having sold the same. Item
Nos.1 and 3 were not attached but directed to attach the item Nos. 4 and
5 by 17.12.2018. The Court was also of the view that the notice was
received by the respondent on 05.09.2018. Having executed the partition
deed on 11.09.2018 and having received the notice on 12.09.2018, there
is no sufficient cause shown by the respondent for not furnishing the
security or for not attaching the said property and hence, the Court below
dismissed the application and directed for attachment on 17.12.2018.
5. Aggrieved by the said order, the third parties, who are the
brother, brother's wife and child of the brother who had been allotted the
items of the said property, has filed I.A.No.3 of 2019 before the Court
below and sought for raising the attachment of scheduled mentioned
property in Item No.5 in Survey No.71/3.
6. The Court below, after considering the arguments of both the
side, dismissed the said application, by observing that the respondent was
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C.R.P.No.124 of 2021
already directed to furnish security for the suit claim by 10.09.2018, but
the respondent did not receive the notice intensively. The respondent's
contention that he is not aware of the Court proceedings was not
accepted and that the Court below was of the opinion that the respondent
had prior knowledge about the suit proceedings and hence, the Court was
of the view that when the petitioner's brother and mother are residing in
the petition mentioned address, they ought to have known about the
notice Hence, the Court below had come to the decision that they have
the difference of knowledge regarding the pendency of the suit and
affixure of the notice. The Court has also considered the same earlier in
I.A.No.607 of 2018 and passed a decree. Aggrieved by the said dismissal,
the petitioners herein, who are the third parties to the suit proceedings,
have filed the present petition.
7. The learned counsel for the petitioner would submit that the fair
and decreetal order of the Court below is against law vitiated with
material irregularities and if allowed to stand, would cause a failure of
justice and cause irreparable injury to the petitioner herein. Further, he
would submit that the Court below has erroneously dismissed the
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C.R.P.No.124 of 2021
application filed under Order 38, Rule 9 of C.P.C., for raising the
attachment and the same is liable to be set aside. The Court below failed
to see that the petitioners have nothing to do with the transactions
between the plaintiff and defendant and therefore, the attachment of their
properties is not correct. It is the further submission of the learned
counsel that the Court below has presumed that the petitioners had
knowledge about the 6-A notice and they knew about the pendency of the
case and based on that, has erroneously dismissed the interlocutory
application. The Court below failed to see that there is no bar for
effecting partition, pending the suit and hence, ought not to have harped
much on that. The Court below failed to see that it has neither
jurisdiction nor power to question the mode of partition between the
parties as the same remains within the domain of the co-owners. Hence,
the petitioner herein prays to allow this civil revision petition.
8. Heard the learned counsel for the petitioners and perused the
materials available on record.
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C.R.P.No.124 of 2021
9. The suit has been filed only for recovery of money to an extent
of Rs.5,24,800/- and the said suit was filed on 30.08.2018. Immediately,
on the same day, he has filed the I.A.No.607 of 2018. The defendant in
the said suit had filed the counter affidavit. From the said averments in
the suit, the plaintiff had filed a petition seeking attachment before
judgment in the petition mentioned property. The plaintiff had submitted
that the respondent has no other source of income to repay the money
borrowed and also he is trying to alienate the petition mentioned
properties. The respondent have denied all the averments by stating that
he had not borrowed any money, but stated that he is liable to pay the
said amount to the petitioner and the properties are liable to be sought for
attachment, since it is a joint family property.
10. The Court below, after considering all the averments, had
partly allowed the application. On going through the typed set of papers
in I.A.No.3 of 2019, the brother, brother's wife and brother's child, who
were allotted Item No.5, have filed the application seeking for raising the
attachment stating that his father had passed away on 26.05.2019 and the
legal heirs of the said brother Srinivasan are in possession of the said
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C.R.P.No.124 of 2021
Item No.5 and they came to know about the said attachment only when
they obtained a loan from the bank, which resulted in failure to obtain
encumbrance certificate. Immediately, they have filed this petition
seeking for raising of the attachment. There is no relationship between
the parties regarding the loan obtained by the first defendant and that due
to the said act of the first respondent, they are put into great hardship,
since they are still recovering from their father's death.
11. It is found that only after filing the suit, the family had divided
the properties among themselves and only item Nos.4 and 5 have been
divided among brothers. It is also seen that the properties are respectively
only an affixure of notice on 05.09.2018 and it is clearly seen that it is
only to avoid payment of money. Hence, this Court is of the view that the
parties are directed to pay 50% of the amount as a security before the
Court below, within a period of three months from the date of receipt of
copy of this order and thereafter, the Court can raise the attachment on a
condition that the parties shall not alienate the said property. The
possession will be with the parties herein till the outcome of the suit.
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C.R.P.No.124 of 2021
12. With the above condition, the present civil revision petition
stands disposed of. No costs. Consequently, connected miscellaneous
petition is closed.
04.02.2021
Index:Yes/No
Speaking order/Non-Speaking Order
sbn
To
The Sub-Court,
Gobichettipalayam.
https://www.mhc.tn.gov.in/judis/
C.R.P.No.124 of 2021
V.BHAVANI SUBBAROYAN, J.
sbn
C.R.P. No.124 of 2021
and
C.M.P.No.1155 of 2021
04.02.2021
https://www.mhc.tn.gov.in/judis/
