Madras High Court
Pushpa vs M.Andi Gounder on 23 February, 2021
C.M.A. 146 of 2016
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 23.02.2021
CORAM
THE HONOURABLE MR.JUSTICE S.M.SUBRAMANIAM
C.M.A.No. 146 of 2016
Pushpa ..Appellant
Vs
1.M.Andi Gounder
2.N.Krishnamoorthy ..Respondents
Prayer : Appeal filed under Order XLIII Rule 1 read with Section 104
of the Code of Civil Procedure against the order and decreetal order
dated 10.02.2015 passed in R.E.A.No. 107 of 2014 in R.E.P.No. 3 of
2013 in O.S.No. 4 of 2006 on the file of Principal District Court,
Krishnagiri.
For Appellant .. Mr.C.Jagadish
For Respondents .. Mr.J.Hariharan
for Mr.V.Nicholas for R1
JUDGMENT
The civil miscellaneous appeal on hand is filed against the fair
and decreetal order passed in R.E.A.No. 107 of 2014 in R.E.P.No. 3
of 2013 in O.S.No. 4 of 2006 on the file of Principal District Court,
Krishnagiri, dated 10.02.2015.
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C.M.A. 146 of 2016
2. The contention of the appellant is that the sale deed was
executed in favour of the appellant Smt.Puspha by one
Kumbalalakayan @ Kodiyappan. The sale deed was executed on
20.02.2006. The appellant became the absolute owner even before
the institution of the suit by the first respondent against the second
respondent for recovery of money. The suit in O.S.No.04 of 2006
was instituted on 17.03.2006 and as on the date of the institution of
the suit, the second respondent was not all the owner of the subject
property, which was sold in favour of the appellant on 20.02.2006.
The property was sold by Kumbalalakayan @ Kodiyappan and
Senthil. The second respondent was an attesting witness in the sale
deed. Thus, the learned counsel appearing for the appellant
contends that the sale became absolute and is no way connected
with the suit filed by the first respondent for recovery of money.
3. The suit was decreed in favour of the first respondent on
27.07.2009. The first respondent filed execution petition to attach
and sold the properties mentioned in the Schedule to the execution
petition. Totally, 13 items were mentioned in the Schedule to the
execution petition dated 02.02.2010. In view of the fact that the
property purchased by the appellant was also included in the
schedule to the execution petition, the appellant was constrained to
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C.M.A. 146 of 2016
file an application under Order 21 Rule 58 CPC to conduct the
adjudication.
4. The Principal District Court, Krishnagiri, adjudicated the
issues with reference to the documents and the evidences filed by
the respective parties. The trial Court found that the suit was
instituted on 17.03.2006 and the said factum was admitted and the
sale deed was executed even prior to the institution of the suit by
the first respondent. Ex.P2 relating to the schedule property item
Nos.9 to 12, stands in favour of the appellant. Patta was also
transferred. There was no encumbrance as such with reference to
the documents produced by the appellant before the trial Court. The
trial Court admitted that there was no fraudulent transfer of
property and there was no evidence available to establish any such
fraudulent transaction both on the side of the vendor and the
purchase. However, the trial Court made an observation that it is a
joint-family property and, therefore, the judgment debtor is having
interest over the property which was sold in favour of the appellant
and, accordingly, allowed the petition in-part excluding the portion
of the properties in Item Nos. 9 to 12 in schedule to the execution
petition. More specifically, the trial Court held that the second
respondent N.Krishnamoorthy is having interest over the properties
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C.M.A. 146 of 2016
in Item Nos. 9 to 12 which was sold in favour of the appellant. Thus,
the petition was allowed in-part confirming the attachment with
reference to the shares to be allowed in favour of the second
respondent - N.Krishnamoorthy.
5. Learned counsel appearing for the first respondent objected
the said contention by stating that the suit was decreed on merits
for a sum of Rs.5,37,000/- (Rupees Five Lakhs and thirty seven
thousand only) with interest at the rate of 9% per annum and the
execution petition was filed for sale of properties consisting of 13
items. The appellant filed an application under Order 21 Rule 58
CPC to adjudicate the claim in respect of Item Nos. 9 to 12 and the
attachment to the said items. The trial Court has rightly restricted
the attachment with reference to the two-third share in which the
second respondent/N.Krishnamoorthy is having interest. Thus, there
is no infirmity as such in the judgment and the civil miscellaneous
appeal is to be dismissed.
6. Admittedly, the decreed amount was Rs.5,37,000/-
(Rupees Five lakhs and thirty-seven thousand only) along with the
interest at the rate of 9% per annum. The rough calculation of the
interest as of now would indicate that the total decree amount
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C.M.A. 146 of 2016
approximately would be a sum of Rs.10,75,000/- (Rupees Ten
Lakhs and Seventy-five thousand only).
7. Learned counsel for the appellant states that the properties
mentioned in the schedule Item Nos. 1 to 8 and 13 are sufficient to
realize the decree amount as the said property value increased.
Even during the year 2009, the value of the properties in Item Nos.
1 to 8 and 13 was about Rs.9,50,000/- (Rupees Nine Lakhs and
Fifty Thousand only) even as per the decree holder. Therefore, now
the value will be far more than that of the value assessed in the
year 2009 and there is no necessity to continue the attachment in
respect of Item Nos. 9 to 12 in order to realize the decree amount.
It is further contended that when there is no fraudulent transaction
which was established by the respondents before the trial Court,
there is no reason to restrict the attachment. Unless the
respondents establish that the sale of Item Nos. 9 to 12 in favour of
the appellant was on fraudulent means, the attachment cannot be
restricted and the petition ought to have been allowed by the trial
Court. It is further contended that the restriction imposed by the
trial Court is contrary to the facts and circumstances and further the
respondents could not be able to establish that the sale deed
executed on 20.02.2006 in favour of the appellant was fraudulent.
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C.M.A. 146 of 2016
8. This being the factum established, this Court is of the
considered opinion that the trial Court has committed an error in not
considering the fact that the value of the properties mentioned in
Item Nos. 1 to 8 and 13 in schedule to the execution petition is
more than sufficient to realize the decree amount and further not
considered the fact that the sale deed was executed in favour of the
appellant on 20.02.2006 even before the institution of the suit in
O.S.No. 04 of 2006 on 17.03.2006. Thus, the fair and decreetal
order dated 10.02.2015 passed in R.E.A.No. 107 of 2014 in
R.E.P.No. 3 of 2013 in O.S.No. 4 of 2006 is set aside and
consequently, C.M.A.No. 146 of 2016 stands allowed. No costs.
C.M.P.No. 1244 of 2015 is closed.
23.02.2021
Index: Yes
ssm
To
The Principal District Court,
Krishnagiri.
https://www.mhc.tn.gov.in/judis/
C.M.A. 146 of 2016
S.M.SUBRAMANIAM, J.
(ssm)
C.M.A.No. 146 of 2016
23.02.2021
https://www.mhc.tn.gov.in/judis/
