Madras High Court

M.Sekar vs N.G.Ponnusamy .. 1St on 27 January, 2022

                                                                    CRP.NPD.Nos.1156 & 1157/2019




                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                DATED : 27.01.2022

                                                      CORAM:

                                    THE HONOURABLE MR.JUSTICE S.S.SUNDAR

                                  CRP.NPD.Nos.1156 & 1157/2019 & CMP.No.7434/2019

                                                   [Hybrid Mode]

                    M.Sekar                                                 ..   Petitioner in
                                                                                  both Petitions

                                                         Vs.

                    1.N.G.Ponnusamy                                        .. 1st Respondent in

CRP.NPD.No.1156/2019

2.Velusamy .. 2nd Respondent / 3rd Party in both petitions rd

3.Chenniappa Gounder .. 3 Respondent / Decree Holder in both petitions

Prayer in CRP.NPD.No.1156/2019:- Civil Revision Petition filed under Section 115 CPC against the fair and decreetal order of the learned Subordinate Judge, Dharapuram dated 12.08.2009 in EA.No.233/2007 in EP.Nos.33/2002 in OS.No.338/2000.

CRP.NPD.Nos.1156 & 1157/2019

Prayer in CRP.NPD.No.1157/2019:- Civil Revision Petition filed under Section 115 CPC against against the fair and decreetal order of the learned Subordinate Judge, Dharapuram dated 12.08.2009 in EA.Nos.166/2007 in EP.Nos.33/2002 in OS.No.338/2000.



                                         For Petitioner in both
                                         Petitions                    :   Mr.T.M.Hariharan
                                         For R1 in both
                                         Petitions                    :   Ms.Dhanwanthi for
                                                                          Mr.K.Govi Ganesan
                                         For R2&R3 in both
                                         Petitions                    :   No appearance



                                                       COMMON ORDER


                    (1)           The present Civil Revision Petitions are filed against the orders

dated 12.08.2009 made in EA.Nos.233/2007 and 166/2007 in

EP.No.33/2002 in OS.No.338/2000.

(2) For the sake of convenience, the parties are referred to as per their

litigating status in CRP.No.1156/2019.

(3) Brief facts that are necessary for the disposal of both the Revision

Petitions are as follows.

CRP.NPD.Nos.1156 & 1157/2019

(4) The suit in OS.No.338/2000 was filed by the 2nd respondent in

CRP.NPD.No.1156/2019 before the Sub Court, Dharapuram, for

recovery of money against the 3rd respondent. IA.No.1255/2000 in

OS.No.338/2000, filed by the plaintiff in OS.No.338/2000 for

attachment of third respondent's property before judgment was

allowed on 06.01.2001.

(5) The 1st respondent in CRP.NPD.No.1156/2019, namely,

N.G.Ponnusamy, also filed a suit in OS.No.27/2002 before the

District Munsiff Court, Kangayam, against the 3rd respondent herein,

namely, Chennaiappa Gounder, for recovery of money. The same

property was also attached in OS.No.27/2002 before judgment. The

suit filed by the 1st respondent herein against the 3rd respondent in

OS.No.27/2002 was decreed vide judgment and decree dated

26.03.2002. The plaintiff in OS.No.27/2002 filed an execution

petition in EP.No.19/2003 in OS.No.27/2002 and the property was

brought to auction on 15.09.2005 and the 1st respondent herein

participated in the Court auction and filed an

CRP.NPD.Nos.1156 & 1157/2019

application in EA.No.149/2005 in EP.No.19/2003 to set off in case

he happens to be the successful bidder. The said application was

allowed on 15.09.2005.

(6) The 1st respondent herein – Ponnusamy purchased the property for a

sum of Rs.30,200/- in the auction held on 24.10.2005. The sale in

favour of Ponnusamy was confirmed and the Sale Certificate was

issued to him on 22.12.2005.

(7) The suit filed by Velusamy - 2nd respondent in

CRP.NPD.No.1156/2019 in OS.No.338/2000 was also decreed by

the Sub Court, Dharapuram. Thereafter, the plaintiff in

OS.No.338/2000 filed an execution petition in EP.No.33/2002 in

OS.No.338/2000 for recovery of a sum of Rs.40,500/-. In the

execution petition filed by the plaintiff in OS.No.338/2000, the same

property was brought to sale. The revision petitioner herein

purchased the property for a sum of Rs.40,500/- on 05.12.2006. A

Sale Certificate was also issued to the revision petitioner in

EP.No.33/2002 in OS.No.338/2000 on 05.02.2007.

CRP.NPD.Nos.1156 & 1157/2019

(8) The 1st respondent herein, namely Ponnusamy, filed an application in

EA.No.65/2006 in EP.No.19/2003 in OS.No.27/2002 before the

learned District Munsif, Kangayam, for delivery and pursuant to an

order of delivery, possession was delivred to the 1st respondent-

Ponnusamy through Court Amin on 08.03.2007. On 26.03.2006,

Delivery of possession was also recorded by the Court. Thereafter,

the 1st respondent in CRP.No.1156/2019 filed an application in

EA.No.233/2007 in EP.No.33/2002 in OS.No.338/2000 to raise the

order of attachment and to set aside the subsequent auction sale

dated 05.12.2006.

(9) The revision petitioner also filed an application in EA.No.166/2007

in EP.No.33/2002 in OS.No.338/2000 for delivery of possession on

01.11.2007. The application filed by Ponnusamy/1st respondent in

CRP.NPD.No.1156/2019, in EA.No.233/2007 to raise the

attachment made in OS.No.338/2000, was allowed and the

execution application in EA.No.166/2007 in EP.No.33/2002 in

OS.No.338/2000 filed by the revision petitioner herein for delivery

of possession, was dismissed consequent to the order allowing

CRP.NPD.Nos.1156 & 1157/2019

EA.No.233/2007 in EP.No.33/2002 in OS.NO.338/2000. As

against the order, allowing EA.No.233/2007 in EP.No.33/2002 in

OS.No.338/2000 and the order, dismissing EA.No.166/2007 in

EP.No.33/2002 in OS.No.338/2000 the revision petitioner herein has

filed the revision petitions in CRP.Nos.1156 & 1157/2019

respectively.

(10) The learned counsel for the revision petitioner submitted that the

property was attached earlier on 06.01.2001 in OS.No.338/2000 and

that the subsequent attachment is invalid as the respondents 1 to 3

have colluded together by bringing the property for sale which was

attached earlier in OS.No.338/2000. Learned counsel would further

submit that the decree holder in OS.No.27/2002, namely,

Ponnusamy / 1st respondent in CRP.NPD.No.1156/2019, has

purchased the property and that the auction sale in favour of the 1st

respondent-Ponnusamy is fraudulent as the parties have colluded and

the said Ponnusamy has purchased the property by abusing legal

process. Learned counsel also pointed out that the property was

attached before judgment by two different Courts. When the

CRP.NPD.Nos.1156 & 1157/2019

property is attached by different Courts in execution of decrees

granted by two different Courts, the superior Court should be

allowed to deal with the property in terms of Section 63 CPC. The

learned counsel appearing for the revision petitioner then submitted

that the order of attachment in the previous suit will prevail over the

order of attachment passed by the inferior Court. It is his further

submission that the order of attachment in OS.No.338/2000 was

duly registered and that respondents 1 to 3 in

CRP.NPD.No.1156/2019, have managed to produce the

Encumbrance Certificate suppressing the prior order of attachment

and that therefore, the sale in favour of the 1st respondent –

Ponnusamy will not prevail over the order of attachment. Learned

counsel further submitted that the rights of the revision petitioner as

a bona fide purchaser, for a valuable consideration, should be

protected.

(11) The Court heard the submissions of the learned counsel for the

revision petitioner and also perused the materials placed.

CRP.NPD.Nos.1156 & 1157/2019

(12) Though any private transfer or delivery of property during the

continuance of an order of attachment is void as against all claims

enforceable against the property already attached, the order of

attachment cannot invalidate a sale which is made in execution of

another decree which is independent. Though the learned counsel

for the revision petitioner submitted that the sale in execution of a

decree obtained by a superior Court will have preference, the said

submission cannot be accepted in the light of Section 63 of CPC.

(13) Section 63 of the Code of Civil Procedure reads as follows:-

''63. Property attached in execution of decrees of several Courts:-

(1) Where property not in the custody of any Court is under attachment in execution of decrees of more Courts than one, the Court which shall receive or realize such property and shall determine any claim thereto any objection to the attachment thereof shall be the Court of highest grade, or, where there is no difference in grade between such Courts, the Court under whose decree the property was first attached.

(2) Nothing in this section shall be deemed to invalidate any proceeding taken by a Court executing

CRP.NPD.Nos.1156 & 1157/2019

one of such decrees.

Explanation:-For the purposes of sub-section (2), "proceeding taken by a Court" does not include an order allowing, to a decree-holder who has purchased property at a sale held in execution of a decree, set off to the extent of the purchase price payable by him.'' (14) Sub-section [2] of Section 63 CPC is decisive and sub-section [1] of

Section 63 CPC cannot be interpreted to invalidate any proceeding

taken by a Court in execution of a decree of an inferior Court. The

language of sub-sections [1] and [2] of Section 63 CPC and the

explanation to Section 63 CPC gives no room for any ambiguity.

Merely because the revision petitioner has purchased the property

which was attached before judgment by a superior Court, the

previous sale in execution of the decree obtained by the 1st

respondent-Ponnusamy cannot be invalidated. In view of the earlier

sale in favour of 1st respondent, the subsequent sale in favour of

revision petitioner is invalid.

(15) Section 64 CPC does not affect even a prior agreement of sale. Even

a conveyance executed after attachment but in pursuance of pre-

attachment agreement is capable of passing good title to the

CRP.NPD.Nos.1156 & 1157/2019

property so conveyed. Section 63 CPC protects the previous sales

in execution of a valid decree even if it is passed by an inferior

Court.

(16) Order 38 Rule 10 CPC reads as follows:-

Order 38 Rule 10 CPC-Attachment before judgment shall not affect the rights, existing prior to the attachment, of persons not partiest to the suit, nor bar any person holding a decree against the defendant from applying for the sale of the property under attachment in execution of such decree.'' (17) Therefore, the right of the 1st respondent in

CRP.NPD.No.1156/2019, holding a decree against the defendant in

the latter suit applying for sale of property is not affected by the

order of attachment before judgment obtained earlier by the 2nd

respondent-Velusamy against the 3rd respondent-Chenniappa

Gounder. It is not in dispute that the Sale Deed and the Sale

Certificate issued to the 1st respondent-Ponnusamy was much earlier

to the sale in favour of the revision petitioner. Merely because the

revision petitioner purchased the property in execution of a decree

obtained from a superior Court, the sale in favour of the 1st

CRP.NPD.Nos.1156 & 1157/2019

respondent-Ponnusamy in execution of another valid decree cannot

be invalidated.