Madras High Court
S.Pushpa vs C.Krishnamoorthy on 27 January, 2021
CRP.NPD.No.3900 of 2015
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 27.01.2021
CORAM
THE HON'BLE MR. JUSTICE G.K.ILANTHIRAIYAN
CRP.NPD.No.3900 of 2015
and
MP.No.1 of 2015
S.Pushpa ..Petitioner
Vs.
1.C.Krishnamoorthy
2.C.Gopal
3.M.Baskaran ..Respondents
PRAYER:
The Civil Revision Petition is filed under Article 227 of the
Constitution of India against the fair and decretal order in EA.No.317
of 2011 in EP.No.154 of 2007 in OS.No.678 of 2004 dated 08.08.2014
on the file of the Additional District Munsif, Vellore, Vellore District.
For Petitioner : Mr.PA.Sudesh Kumar
For Respondents
For R1 : Mr.G.Jeremiah
R2 : Notice served
For R3 : Mr.N.Subbarayulu
1/8
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CRP.NPD.No.3900 of 2015
ORDER
The civil revision petition is directed as against the fair and
decreetal order passed in EA.No.317 of 2011 in EP.No.154 of 2007 in
OS.No.678 of 2004 dated 08.08.2014 on the file of the Additional
District Munsif, Vellore, Vellore District thereby dismissed the claim
petition filed by the petitioner under Section 47 of CPC.
2. The first respondent filed suit for recovery of money
against the second respondent herein. The said suit was decreed by
the judgment and decree dated 24.11.2005. In pursuant to the
decree, the first respondent herein filed execution petition. In the
execution petition, the trial court ordered attachment of subject
property by order dated 12.05.2008. Thereafter the said property was
taken for auction sale. The third respondent herein purchased the
property in the execution proceedings on 06.06.2011. While the third
respondent was taking auction to take possession of the subject
property, the petitioner came to know about the sale in the execution
proceedings in respect of the subject property by sale deed dated
06.06.2011. Thereafter, the petitioner filed claim petition under
Section 47 of CPC thereby claiming that the petitioner entered into
agreement for sale in respect of the very same subject property with
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CRP.NPD.No.3900 of 2015
the second respondent i.e. judgment debtor by the agreement dated
04.12.2004. In pursuant to the said agreement, after payment of
entire sale consideration by the registered sale deed dated
04.06.2007, the second respondent executed registered sale deed in
her favour. From the date of the sale, she is in possession and
enjoyment of the property. When she came to know about the auction
purchase by the third respondent herein, immediately she filed claim
petition under Section 47 of CPC.
3. The learned counsel for the petitioner would submit that
the execution court dismissed the claim petition only on the ground
that the petitioner failed to strengthen her sale deed by examining the
witnesses. Further stated that though the third respondent took a
stand that the petitioner is none other than own sister of the wife of
the judgment debtor, the third respondent failed to prove the same.
Further, the petitioner also failed to prove that the sale deed is valid
and failed to cross examine the respondent. He further submitted that
under Section 64 of CPC, the attachment itself is void since the subject
property was attached by the execution court only on 12.05.2008,
whereas the petitioner purchased the subject property as early as on
04.06.2007 in pursuant to the agreement for sale dated 04.12.2004.
Therefore, the attachment itself is void.
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CRP.NPD.No.3900 of 2015
4. Per contra, the learned counsel for the respondent would
submit that as per the provision under Order 21 Rule 58 of CPC when
the subject property was sold out on auction sale, the claim petition is
not at all maintainable and as such the trial court rightly dismissed the
claim petition filed by the petitioner herein.
5. It is relevant to extract the Section 64 of CPC as follows:
"64. Private alienation of property after attachment to be void:
(1) Where an attachment has been made, any
private transfer or delivery of the property attached
or of any interest there in and any payment to the
judgment-debtor of any debt, dividend or other
monies contrary to such attachment, shall be void
as against all claims enforceable under the
attachment."
Accordingly, the transfer of property happened in pursuant to the
contract before the attachment itself is void.
6. It is relevant to extract the Order 21 Rule 58 of CPC as
follows:
"Order 21, Rule 58 : Adjudication of claims to, or
objections to attachment of property :--
(1) Where any claim is preferred to, or any objection
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CRP.NPD.No.3900 of 2015
is made to the attachment of, any property attached in
execution of a decree on the ground that such property is
not liable to such attachment, the Court shall proceed to
adjudicate upon the claim or objection in accordance with
the provisions herein contained."
Accordingly, after sale of the attached property, the claim petition is
not maintainable.
7. On perusal of the documents, on the strength of the
agreement for sale dated 04.12.2004, the petitioner purchased the
subject property by the sale dated 04.06.2007. Admittedly, the
attachment was ordered only on 12.05.2008. Therefore, even before
the order of attachment, the petitioner purchased the subject property
by the registered sale deed dated 04.06.2007. Therefore, the
attachment itself is questionable. Further the trial court dismissed the
claim petition only for the reason that the petitioner failed to strength
the sale deed dated 04.06.2007 by examining the witnesses and also
not cross examined the respondent. Therefore, the order dated
08.08.2014 passed by the court below is perverse and illegal.
8. Accordingly, this civil revision petition is allowed and the
order in EA.No.317 of 2011 in EP.No.154 of 2007 in OS.No.678 of
2004 dated 08.08.2014 is set aside. The claim petition in EA.No.317
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CRP.NPD.No.3900 of 2015
of 2011 in EP.No.154 of 2007 in OS.No.678 of 2004 is remitted back
to the trial court for fresh consideration. The Execution Court is
directed to consider the above observations made by this Court and
pass order on merits and in accordance with law within a period of
three months from the date of receipt of copy of this order. Both the
parties are at liberty to let in evidence. Consequently, connected
miscellaneous petition is closed. No order as to costs.
27.01.2021
Speaking/Non-speaking order
Index : Yes/No
Internet : Yes/No
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CRP.NPD.No.3900 of 2015
To
The Additional District Munsif,
Vellore, Vellore District.
G.K.ILANTHIRAIYAN,J.
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CRP.NPD.No.3900 of 2015
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CRP.NPD.No.3900 of 2015
27.01.2021
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