Madras High Court
Subramanian vs Bomma Naicker on 4 February, 2021
C.M.S.A.No.51 of 2011
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 04.02.2021
CORAM
THE HONOURABLE MR. JUSTICE S.M.SUBRAMANIAM
C.M.S.A.No.51 of 2011
Subramanian .. Appellant
Versus
1.Bomma Naicker
2.Thangavel @ Thangamuthu @ Machi .. Respondents
Prayer: Civil Miscellaneous Second Appeal filed under Section 100 of the
Code of Civil Procedure, to set aside the judgment and decree dated
19.10.2010 made in C.M.A.No.3 of 2010 on the file of the Sub Court,
Perundurai confirming the fair and decretal order dated 16.12.2005 made in
E.A.No.184 of 2004 in E.P.No.117 of 2004 in O.S.No.594 of 1999 on the
file of the District Munsif Court, Perundaurai.
For Appellant : Mr. N. Manoharan
For Respondents : Mr. A. Thiyagarajan, for R1
No Appearance for R2
1/6
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C.M.S.A.No.51 of 2011
JUDGMENT
The judgment and decree dated 19.10.2010, passed in
C.M.A.No.3/2010, confirming the fair and decretal order dated 16.12.2005,
passed in E.A.No.184/2004, is under challenge in the present Civil
Miscellaneous Second Appeal. The substantial question of law raised in the
present appeal is that whether the Courts below erred in law in rejecting the
claim petition by counting the genuineness of the registered sale deed, dated
30.08.2001. Particularly, when there was no communication to the Sub
Registrar as contemplated under Order 38 Rule 11 B CPC, so as to
invalidate the transfer.
2. The facts in the nutshell to be considered in this appeal are
that, the first respondent filed O.S.No.594/1999, against the second
respondent for recovery of money, during the year 1999, suit was decreed
ex-parte. On 01.06.2000, registered sale agreement was executed by the
second respondent to the appellant to sell his property. Thereafter,
E.P.No.117/2004, was filed and the property was attached by the Court on
26.06.2000. The contention of the appellant is that after attachment of the
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C.M.S.A.No.51 of 2011
property in E.P.No.117/2004, the appellant got the registered sale deed on
30.08.2001. Thus, the appellant filed E.A.No.184/2004 under Order 21
Rule 58 CPC on 03.10.2001. Accordingly, on 04.10.2001, the property was
sold in Court auction without notice to the appellant. The appellant filed
E.A.No.184/2004 which was dismissed by the Execution Court on
16.12.2005, mainly on the ground that the property was already attached on
26.06.2000 whereas, the sale deed was executed on 30.10.2001 to the
appellant. Accordingly, the sale was confirmed in E.P.No.117/2004 on
03.12.2007. Consequently, the delivery was effected on 05.06.2008 in
E.A.No.117/2004. The appellant filed C.M.A.No.3/2010 before the Sub
Court, Perundurai and the said CMA was also dismissed on the ground that
the appellant had purchased the property after the order of attachment and
the appellant is not a bonafide purchaser and further, the appellant had
purchased RS.No.138/1, but the properties sold in the auction is located in
R.S.No.158/1.
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C.M.S.A.No.51 of 2011
3. This Court is of the considered opinion that the relevant fact
regarding the registered sale deed dated 30.08.2001 was adjudicated and a
finding was made by the Sub Court, Pe..in C.M.A.No.3/2010 more
specifically in para 7 reads as under:-
“7. It is to be noted that during the cross
examination of P.W.1 he would admit that he knew the loan
transaction between the Bommanaicker and Thangamuthu.
Further he admits that he obtained the sale deed nearly
after one year from the date of attachment. Further he
would admit that the Power of attorney Mayilathal is non
other than his wife. Further he would also admit that he
has not paid any money to the said Mayilathal at the time
of Ex.P.1 sale deed, but in the Ex.P.1 sale deed it is recited
that the said Mayilathal being the Power of attorney of one
Thangamuthu who is the judgment debtor, receive th sum
of Rs.30,000/- as sale consideration. But in the cross
examination, P.W.1 admitted that he has not paid any
money to the Mayilathal. Therefore frome this admission it
is quite clear that there was no sale consideration passed
in the Ex.P.1 sale deed and it is only a sham and nominal
deed. Under these circumstances the appellant should have
examined any one of the attesting witnesses to prove that
he is a bonafide purchaser and he purchased the
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C.M.S.A.No.51 of 2011
properties for a valuable consideration. But the appellant
has not at all examined any other witnesses to prove his
case.”
4. The factum regarding the registration of the sale deed was
admittedly done after the attachment of the property in E.P.No.117/2004 on
26.06.2000, then the learned Sub Judge, categorically recorded the factum
that the registered sale deed was executed after attachment of the property,
then Section 53 of the Transfer of Property would be applicable and
accordingly, the said Transfer of Property is to be construed as transfer.
5. In view of the fact that the property was already attached by
the Court in an execution proceedings. Any sale transaction done after the
attachment by the Court, such transaction if it is found to be defect the claim
of the decree holder then such transaction sought to be declared as fradulent
transfer within the meaning of Section 53 of Transfer of Property Act. Thus,
the substantial question of law raised in this regard affirm in favour of the
appellant. The facts are recorded by the Sub Court, accordingly the
registration of the sale deed which is crystal clear. The registered sale deed
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C.M.S.A.No.51 of 2011
S.M.SUBRAMANIAM,J.
was executed well after the attachment of the property in E.P.No.117/2004
and therefore, the sale deed was registered to fructify the rights of the
judgment debtor. Thus, the said sale is fradulent transfer within the
meaning of Section 53 of the Transfer of Property Act. Accordingly, the
judgment and decree dated 19.10.2010, passed in CMA.No.3/2010
confirming the fair and decretal order dated 16.12.2005 passed in
E.A.No.184/2004 stands confirmed. Consequently, CMSA.No.51/2011
stands dismissed. No costs.
04.02.2021
Index: Yes/ No
AT
To
1.The Sub Court, Perundurai.
2.The District Munsif Court,
Perundaurai.
C.M.S.A.No.51 of 2011
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