Madras High Court
S.Kumaravel(Died) vs P.Ganesamurthy on 4 January, 2022
C.R.P.(MD)No.531 of 2014
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 04.01.2022
CORAM:
THE HONOURABLE MS.JUSTICE P.T.ASHA
C.R.P.(MD)No.531 of 2014
and
M.P.(MD)No.1 of 2014
1.S.Kumaravel(Died)
2.Muthumalai
3.Murugammal
4.Muthumari
5.Arumugam ... Petitioners
(Petitioners Nos.2 to 5 are brought on record as Lrs of the deceased sole
petitioner vide Court order dated 26.11.2021 made in CMP.(MD)No.
4517 of 2021 in CRP.(MD)No.531 of 2014)
-vs-
P.Ganesamurthy ... Respondent
Prayer :- Petition filed under Section 115 of the Code of Civil Procedure
Code, to set aside the Fair and Decretal order dated 13.09.2013 in
E.P.No.117 of 2011 in O.S.No.65 of 2005 on the file of the Principal
District Munsif Court, Tenkasi.
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C.R.P.(MD)No.531 of 2014
For Petitioners : Mr.D.Nallathambi
For Respondent : Mr.H.Arumugam
ORDER
The judgment debtor is before this Court challenging the order
passed by the Executing Court namely Principal District Munsif Court,
Tenkasi, ordering the sale of the schedule mentioned property.
2.The grounds of challenge by the judgment debtor / revision
petitioner is two fold:-
i). The executing Court has ordered sale without an attachment of
the property.
ii).The property had been assigned in favour of the revision
petitioner and there was a prohibition on the attachment of the suit
property as per terms of clause 9 of the assignment order dated
30.09.2000.
3.Mr.H.Arumugam, learned counsel appearing on behalf of the
decree holder would refute the statement by contending that the first
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C.R.P.(MD)No.531 of 2014
ground of attack is contrary to the provisions under Section 51(b) of the
Code of Civil Procedure which would clearly state that the execution of
the decree can be ordered by attachment and sale or by sale without
attachment of any property. Further, the terms of clause 9 of the
assignment deed in favour of the judgment debtor, is not a fetter to the
attachment in the light of the Revenue Standing Order 15 (12) (3). He
would also rely on the judgment of this Court reported in 2006 (1) CTC
526 in the case of D.V.Athisayaraj vs Tirunelveli Diocese Trust
Association No.5, Punithavathiyar Street, Palayamkottai, Tirunelveli,
wherein this Court has held that there is no provision which states that
attachment is a pre-condition to bringing a property to sale and therefore,
he would submit that the order does not require any interference.
4.Heard the learned counsel appearing on either side and perused
the records.
5.(i) Section 51(b) of CPC reads as follows:-
“b. by attachment and sale or by sale without
attachment of any property”
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C.R.P.(MD)No.531 of 2014
6.A perusal of Section 51(b) of CPC makes it very clear that an
execution of a decree can be either by way of an attachment and sale or
by a sale without attachment.
7.In the instant case, the property is sought to be brought to sale
without an order of attachment. This is in tune with the provision of
Section 51(b) of CPC. Further in the judgment referred above, the
learned Judge has extensively dealt with the earlier judgments and
ultimately the learned Judge has observed as follows:-
26.Thus, analyzing the provisions as well as in the light
of the decision available under Section 51(b) of the Act, I am of
the considered opinion, that the property of the judgment
debtor can be brought for sale, even without attaching the
property and in this view, if the attachment is sought for, after
the execution petition was filed in time, it may not amount to
substituting a fresh E.P. or seeking attachment, after the period
prescribed for execution is over. Therefore, as rightly submitted
by Mr. Vallinayagam, it should be held, that bringing the
property of the judgment debtor for sale without attachment
also is valid, enforceable.
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C.R.P.(MD)No.531 of 2014
8.The observation applies on all fours to the facts of the instant
case. As regards the second limp of argument that the property cannot be
attached in the light of the condition of the assignment, it is necessary to
extract clause 9 of the assignment deed:-
9.butpd;a[ otpc&dy; Mgp!hpd; mDkjpia vGj;J K:ykha;
Kd;djhfg; bgw;Wf;bfhs;shky;. ic& epykhdJ ,e;j xg;gilapd;
njjpapypUe;J gj;J tUc& fhyj;Jf;Fs; tpw;gid. jhdk;. milkhdk;
my;yJ ahbjhUtifahd Fj;jif K:ykhfg; guhjPdk;
bra;ag;gl;lhYk;. rl;l hPjpahd g;uhb!!; vd;Dk; fl;lisg; goahtJ
kw;wg;goahtJ tpw;gid bra;ag;gl;lJ fhuzkhfg; gpujk
xg;giljuhUf;nfh mtUila rl;l rk;kjkhd thhpRfSf;nfh mnj
fhy mst[ tiuapy; brhe;jkhapuhkw;ngha;tpl;lhYk;. ic& Xg;gil epyk;
murh';fj;jhuhy; jpUg;gp vLj;Jf;bfhs;sg;gLtjw;F cl;gl;ljhFk;.
mg;nghJ murh';fj;jhh; mjpy; bra;ag;gl;Ls;s ve;jr;
rPh;jpUj;j';fSf;fhfthtJ my;yJ mjd;nky; fl;lg;gl;Ls;s ve;j
fl;ol';fSf;fhfthtJ e\;l. <L bfhLf;fhkny kidapy; kWgoa[k;
gpuntrpj;J mijr; Rthjpdg;gLj;jpf;bfhs;s
ghj;jpaija[s;sth;fshthh;fs;. MapDk; ,e;jj; jlitahdJ ....
kidapd;nky; fl;lg;gl;Ls;s ve;j fl;ol';fs; rfpjkhfthtJ me;j
kidia ahbjhU Tl;Lwt[ r';fj;Jf;fhtJ. epy tpUj;jp rk;ge;jkhd
fld;fisf; Fwpj;j rl;lj;jpdg; oa[k;. tptrhapfSf;Ff; fld;
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C.R.P.(MD)No.531 of 2014
bfhLg;gijf; Fwpj;j rl;lj;jpd;goa[k; murh';fj;jhUf;fhtJ <L
fhl;of; bfhJit itg;gjw;F gpunahfg;glkhl;lhJ/ nkny Fwpgg; pl;lgo
xg;gil epyj;ijj; jpUg;gp vLj;Jf;bfhs;tjw;Fk; mjpy; kWgoa[k;
gpuntrpf;Fk;go cj;jut[ bra;tjw;FKs;s mjpfhukhdJ
butpd;a[ otpc&dy;; Mgp!hplj;jpy; r';fpukpf;Fk;/
9.A reading of this clause clearly shows that the prohibition
contemplated is for a period of 10 years. The assignment has been
effected on 13.09.2000 and therefore, it came to an end in 2010. The
execution in the instant case has been filed only in the year 2011 after the
period of prohibition had expired. Further, the Revenue Standing Order
15 (12) (3) clearly distinguishes the attachment of a property by virtue of
orders of Court. The standing order clearly states that the fetter
contemplated by the conditions of assignment is subservient to the orders
of the Civil Court. The provisions of Revenue Stating Order 15(12)(3)
states that the restriction on alienation cannot be enforced against the
procedures in Court auction in satisfaction of decrees. Therefore, the
revision deserves to be rejected and the order of the learned Judge
requires to be confirmed.
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C.R.P.(MD)No.531 of 2014
10.In the result, this Civil Revision Petition is dismissed.
No costs. Consequently, connected miscellaneous petition is closed.
04.01.2022
Index : Yes/No
Internet : Yes/No
cp
To
The Judge,
Principal District Munsif Court,
Tenkasi.
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.
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C.R.P.(MD)No.531 of 2014
P.T.ASHA, J.
cp
C.R.P.(MD)No.531 of 2014
and
M.P.(MD)No.1 of 2014
Dated: 04.01.2022
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https://www.mhc.tn.gov.in/judis
