Madras High Court
N.G. Deivasigamani vs Saranya on 8 February, 2021
C.M.S.A.No.25 of 2012 and
M.P.No.1 of 2012
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED 08.02.2021
CORAM
THE HONOURABLE MR. JUSTICE S.M.SUBRAMANIAM
C.M.S.A.No.25 of 2012
and
M.P.No.1 of 2012
N.G. Deivasigamani .. Appellant
Versus
1.Saranya
2.Minor Sowmiya
3.K.M. Balasubramaniam .. Respondents
Prayer: Civil Miscellaneous Second Appeal filed under Order 21 Rule 58
r/w under Section 100 of the Code of Civil Procedure, against the judgment
and decree of the Principal District Judge Court at Erode, dated 18.04.2012
in A.S.No.108 of 2011 reversing the judgment and decree of the
Subordinate Judge Court at Perundurai, dated 28.09.2011 in E.A.No.56 of
2010 in E.P.No.61 of 2009 in O.S.No.801 of 2000.
For Appellant : Mr. V.P. Sengottuvel
For Respondents : Mr. V. Kadhirvelu, for RR1 & 2
Mr. N. Manokaran, for R3
1/6
https://www.mhc.tn.gov.in/judis/
C.M.S.A.No.25 of 2012 and
M.P.No.1 of 2012
JUDGMENT
The judgment and decree dated 18.04.2012, passed in
A.S.No.108/2011, is under challenge in the present Civil Miscellaneous
Second Appeal. The facts in nutshell are that the third respondent borrowed
a sum of Rs.1,00,000/- from the appellant under a promissory note on
01.08.1999. On account of the default committed by the third respondent in
repaying the borrowed amount, the appellant filed O.S.No.801/2000, on
17.10.2000. The suit was decreed ex-parte on 01.08.2007. The
appellant/plaintiff filed E.P.No.61/2009 on 01.11.2007. Interestingly, on
14.03.2008, the respondents 1 and 2 who are none other than the daughters
of the third respondent filed O.S.No.26/2006 for partition claiming 2/3
shares as the property in question is an ancestral property. After contest, the
suit was decreed in favour of the respondents 1 and 2. Consequently, the
respondents 1 and 2 filed E.A.No.56/2010 under Order 21 Rule 58 and
Section 151 of CPC on 01.04.2010. Pending E.A., the sale was held on
09.04.2010 in E.P.No.61/2009.
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C.M.S.A.No.25 of 2012 and
M.P.No.1 of 2012
2. Accordingly, the appellant decree holder purchased the
property. Thus, the appellant became the owner of the property, consequent
to the sale held in E.P.No.61/2009. However, the respondents 1 and 2
aggrieved from and out of the sale held in E.P.No.61/2009 filed an appeal in
E.A.No.56/2010, which was dismissed on 28.09.2011. Thus, the
respondents 1 and 2 again filed A.S.No.108/2011, before the Principal
District Court, Erode and the said appeal suit was allowed on 18.01.2012,
on the ground that the respondents 1 and 2 being the coparceners are
entitled to 2/3 shares in property as per the decree in O.S.No.26/2006. The
third respondent/judgment debtor had utilised the funds for the illegal and
immoral purposes. He had not utilised the amount for the family necessity.
Thirdly, the respondents 1 and 2 being the daughters have no bias obligation
during the life of their father / first respondent. Based on these grounds, the
Principal District Court, allowed the appeal suit filed in A.S.108/2011. The
third respondent questioned the judgment and decree passed in
O.S.No.26/2006 in A.S.No.582/2008. The said appeal suit was disposed of
by the Hon'ble Division Bench of the Madras Court, which is reported in
2018 1 MWN (Civil -para 7). The Hon'ble Division Bench dismissed both
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C.M.S.A.No.25 of 2012 and
M.P.No.1 of 2012
the appeal suit in A.S.No.582/2008 as well as the Cross Objection
No.10/2009, confirming the judgment and decree dated 14.03.2008, made in
O.S.No.26/2006. During the pendency of A.S.No.582/2008, the third
respondent filed E.A.No.91/2010 under Order 21 Rule 90 to set aside the
sale, which was allowed on 27.04.2014. The sale held on 09.04.2010, was
set aside. Against the said judgment, the appellant filed CMA.No.32/2014
before the First Additional District Court, Erode and the said CMA was
dismissed on 17.10.2019.
3. In view of the above litigations, the rights of the respondents 1
and 2, who are the daughters of the third respondent stood confirmed. The
sale made in favour of one Mr.Chinniappan, auction purchaser was set
aside. The rights of the respondents 1 and 2 are confirmed by the Court.
This being the factum established, the present appeal deserves no further
consideration on merits as the sale itself has gone. In other words, when the
sale was set aside by the Court, which was made to reliase the decree
amount, the further appeals on the said ground would not arise at all. This
being the factum, the cause arises for the purpose of filing the present
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C.M.S.A.No.25 of 2012 and
M.P.No.1 of 2012
second appeal did not exist. Thus, the CMA stands disposed of as
infructuous. No costs. Consequently, connected miscellaneous petition is
closed.
08.02.2021
AT
Index: Yes/ No
https://www.mhc.tn.gov.in/judis/
C.M.S.A.No.25 of 2012 and
M.P.No.1 of 2012
S.M.SUBRAMANIAM,J.
AT
To
1.The Principal District Judge Court,
Erode.
2.The Subordinate Judge Court,
Perundurai.
C.M.S.A.No.25 of 2012 and
M.P.No.1 of 2012
08.02.2021
https://www.mhc.tn.gov.in/judis/
