Madras High Court
Murugan vs J.G.B.Manivannan on 29 July, 2021
C.M.A.(MD)No.443 of 2013
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Dated : 29.07.2021
CORAM
THE HONOURABLE MRS. JUSTICE R. THARANI
C.M.A.(MD)No.443 of 2013
and
M.P.(MD)No.1 of 2013
1.Murugan
2.Dhasarathan ..Appellants
Vs.
J.G.B.Manivannan .. Respondent
Prayer: This Civil Miscellaneous Appeal is filed under Order 43(1)(q) of CPC, to
call for the records connected with the order dated 22.11.2012 in I.A.No.15 of 2012
in O.S.No.10 of 2012 on the file of the learned Principal District Judge, Theni and to
set aside the same as illegal.
For Appellants : Mr.B.Dhanasekaran
For Respondent : No Appearance
JUDGMENT
This Civil Miscellaneous Appeal has been filed against the order passed in
I.A.No.15 of 2012 in O.S.No.10 of 2012 dated 22.11.2012, on the file of the learned
Principal District Judge, Theni
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C.M.A.(MD)No.443 of 2013
2.The appellants herein are the defendants and the respondent herein is the
plaintiff in the suit. The respondent herein has filed a money suit in O.S.No.10 of
2012. Pending suit, the respondent herein has filed a petition in I.A.No.15 of 2012 to
attach the schedule mentioned properties before Judgment.
3.A brief substance of the application in I.A.No.15 of 2012 is as follows:
On 10.03.2011, the respondents borrowed a sum of Rs.15,00,000/- to meet
out his urgent expenses and he executed a promissory note dated 10.03.2011,
promising to pay interest at the a rate of Rs.2/- per Rs.100/- per month. In spite of
repeated demands, the respondents failed to repay the loan amount with interest and
hence, the petitioner filed a suit for recovery of money. The properties mentioned in
the petition are absolute properties of the respondents. The respondents are taking
hectic steps to dispose of the properties and he has attempted to alienate the
properties with a motive to delay the execution proceedings that may be taken
against him.
4.The brief substance of the counter filed by the respondents therein is as
follows:
The respondents have not borrowed any amount from the petitioner. Mere
mentioning that the respondents are trying to alienate the properties is not sufficient
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C.M.A.(MD)No.443 of 2013
under Order 38 Rule 5 of CPC. Vague and general allegation is insufficient. The
wife of the petitioner purchased some extent of land adjacent to the land of the
defendant without any pathway and in order to get pathway through the land of the
respondents, he has filed this vexatious case.
5.After trial, the Trial Court has allowed the petition. Against which, the
appellant has preferred this Civil Miscellaneous Appeal.
6.On the side of the appellants, it is stated that there is no material to proof
that the appellants borrowed a sum of Rs.15,00,000/- (Rupees Fifteen Lakhs only)
from the respondent. It is unbelievable that a sum of Rs.15,00,000/- (Rupees Fifteen
Lakhs only) was given as a loan on execution of pro note stamped with Rs.2/-. There
is no possibility of lending a huge amount without any valuable security. There is no
possibility of passing any decree in favour of the plaintiff and as such attachment
before the judgment is not necessary.
7.On the side of the respondent, it is stated that why the appellants need
the money was not explained in the plaint. The name of relatives from whom, the
plaintiffs got money was not mentioned in the plaint. There was no evidence as to the
attempts of the appellants to alienate the properties. Actually the defendant is
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C.M.A.(MD)No.443 of 2013
purchasing new properties. There is no necessity for him to alienate any property.
Only a land dispute is colored as money dispute and prayed the order to be set aside.
8.Though the name of the respondent was printed in the cause list, there
was no representation on behalf of the respondent.
9.A perusal of the records reveals that the respondent filed a money suit
against the appellants and the money suit is still pending. The suit was filed in the
year 2012. The appellants instead of contesting the case, obtained a stay order and
thereby staying the proceedings of the trial Court. Only after considering the
preliminary merits of the case, the trial Court has ordered for attachment of the
property.
10.In the above circumstances, there is nothing sufficient enough to
interfere in the order of in I.A.No.15 of 2012 in O.S.No.10 of 2012 dated
22.11.2012, on the file of the learned Principal District Judge, Theni. This Civil
Miscellaneous Appeal is dismissed. No Costs. Consequently, connected
miscellaneous petition is closed.
29.07.2021
Index : Yes/No
Internet : Yes/No
https://www.mhc.tn.gov.in/judis/
C.M.A.(MD)No.443 of 2013
Note : In view of the present lock down owing to COVID – 19 pandemic, a
web copy of the order may be utilized for official purposes, but, ensuring
that the copy of the order that is presented is the correct copy, shall be the
responsibility of the advocate / litigant concerned.
To
1.The Principal District Judge,
Theni.
2.The Section Officer,
V.R. Section,
Madurai Bench of Madras High Court,
Madurai.
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C.M.A.(MD)No.443 of 2013
R. THARANI, J.
MRN
C.M.A.(MD)No.443 of 2013
29.07.2021
https://www.mhc.tn.gov.in/judis/
