Madras High Court
Tamizharasi vs Govindharajan on 21 January, 2022
C.M.S.A.No.35 of 2016
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 21.01.2022
CORAM:
THE HONOURABLE MS.JUSTICE V.M.VELUMANI
C.M.S.A.No.35 of 2016
and
C.M.P.No.18342 of 2016
Saradambal Ammal (Deceased)
Balakrishnan (Deceased)
1.Tamizharasi
2.Gajira .. Appellants
Vs.
1.Govindharajan
2.Aruljothinadarajan
3.K.Rajasekaran .. Respondents
(R3 impleaded as party respondent
vide order of this Court dated
06.11.2019 made in C.M.P.No.958 of
2017 in C.M.S.A.No.35 of 2016)
Prayer: This Civil Miscellaneous Second Appeal is filed under Order XXI
Rule 58 (5) of the Code of Civil Procedure r/w Section 100 of the Code of
Civil Procedure, against the Fair and Final Order dated 15.07.2015 passed in
1/23
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C.M.S.A.No.35 of 2016
C.M.A.No.38 of 2010 on the file of the 1st Additional District and Sessions
Court, Cuddalore confirming the order dated 23.12.2009 passed in
E.A.No.402 of 2007 in E.P.No.59 of 2006 in O.S.No.98 of 2005 on the file of
the 1st Additional Sub Court, Cuddalore.
For Appellants : Mr.R.Muralidharan
For RR 1 & 3 : M/s.R.Meenal
For R2 : No appearance
JUDGMENT
(The matter is heard through “Video Conferencing”)
The Civil Miscellaneous Second Appeal is filed against the Fair and
Final Order dated 15.07.2015 passed in C.M.A.No.38 of 2010 on the file of
the 1st Additional District and Sessions Court, Cuddalore confirming the order
dated 23.12.2009 passed in E.A.No.402 of 2007 in E.P.No.59 of 2006 in
O.S.No.98 of 2005 on the file of the 1st Additional Sub Court, Cuddalore.
2.The appellants are legal representatives of one Saradambal Ammal
who is third party to the suit in O.S.No.98 of 2005 and E.P.No.59 of 2006.
The first respondent filed the said suit in O.S.No.98 of 2005 against the
second respondent for recovery of money. Pending suit, the first respondent
filed an application for attachment before judgment and attachment before
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judgment was ordered on 30.11.2005. After contest, the suit was decreed on
19.12.2005. The first respondent filed an Execution Petition in E.P.No.59 of
2006 to execute the decree by ordering sale of the petition mentioned
property. After contest, by the order dated 07.03.2007, the Court ordered sale
of the property. At that stage, the said Saradambal Ammal filed E.A.No.402
of 2007 under Order XXI Rule 58 of Code of Civil Procedure, to declare her
as absolute owner of the property, she is in possession and enjoyment of the
suit property and to raise attachment.
3.According to the said Saradambal Ammal, the second respondent is
not the absolute owner of the petition property and she is the absolute owner
of the petition property. She came to know about the order of attachment
passed just one week prior to the filing of the petition. She is in possession
and enjoyment of the petition mentioned property as absolute owner for more
than 30 years. She has constructed a house in the petition mentioned property
and is paying house tax and consumption charges to the Electricity Board.
The respondents have colluded together and in order to defeat the rights of
said Saradambal Ammal, filed Execution Petition and prayed for allowing the
E.A.
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4.The first respondent filed counter affidavit and denied all the
averments made by said Saradambal Ammal. According to the first
respondent, the said Saradambal Ammal is not the owner of the petition
mentioned property and she is nothing to do with the petition property. Only
at the instigation of the second respondent, she has filed the present petition in
E.A.No.402 of 2007 to drag on the proceedings. The attachment before the
judgment was effected on 30.11.2005, pending suit, prior to the decree. E.P
was filed on 02.06.2006 and after contest, the sale was ordered on
07.03.2007. At that stage, the second respondent used to pay very meager
amount of Rs.1000/- and filed sale adjournment petition. The first respondent
refused to receive the said amount. After taking adjournments, the second
respondent protracted the proceedings. At that stage, the said Saradambal
Ammal, after two years of attachment, has come out with the present E.A.,
which is not maintainable and prayed for dismissal of E.A.
5.Before the learned Judge, the said Saradambal Ammal was examined
as P.W.1 and 12 documents were marked as Exhibits Exs.P1 to P12. The first
respondent examined himself as R.W.1 and marked 2 documents as Exs.R1
and R2.
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6.The learned Judge framed necessary points for consideration.
Considering the averments in the affidavit, counter affidavit, oral and
documentary evidences and points for consideration, dismissed the
application, holding that said Saradambal Ammal failed to prove that she is
the owner of the petition mentioned property.
7.Against the said order of dismissal dated 23.12.2009, said
Saradambal Ammal has filed C.M.A.No.38 of 2010. Pending C.M.A, the said
Saradambal Ammal died. The appellants and one Balakrishnan were
impleaded as legal heirs of said Saradambal Ammal by the order dated
11.09.2013 passed in I.A.No.54 of 2013. The said Balakrishnan also died and
as per the order on memo dated 06.02.2015, the appellants were treated as
legal heirs of the said Balakrishnan. The learned First Appellate Judge framed
necessary points for consideration. The learned First Appellate Judge
considering the materials available on record, order of the learned Judge and
point for consideration, dismissed the appeal.
8.Against the said order of dismissal dated 15.07.2015 made in
C.M.A.No.38 of 2010 confirming the order dated 23.12.2009 passed in
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E.A.No.402 of 2007 in E.P.No.59 of 2006 in O.S.No.98 of 2005, the present
appeal is filed.
9.The learned counsel appearing for the appellants contended that the
courts below failed to consider the documents filed by the said Saradambal
Ammal. The First Appellate Court erred in holding that said Saradambal
Ammal failed to prove her title and thereby failed to prove her possession. The
judgment of the First Appellate Court is not based on any evidence and the
courts below failed to appreciate the fact that the Saradambal Ammal became
the owner of the property after the death of her husband Sethuraman and
sons. The second respondent who is the great grandson of said Saradambal
Ammal cannot get any right over the property simply because he is residing
with her. The Court below failed to consider the documents filed by
Saradambal Ammal. The learned counsel appearing for the appellants filed
written arguments and submitted that the learned Trial Judge erred in holding
that the Saradambal Ammal failed to examine the first appellant and second
respondent. The second respondent is the grand son of the Saradambal
Ammal's elder daughter. Except this relationship, the second respondent has
no right in the petition property. The Trial Court failed to consider how the
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second respondent is owner of the entire property. There is no proof to show
that the second respondent is the owner of the petition property. The learned
First Appellate Judge in paragraph No.12 of the judgment, held that the said
Saradambal Ammal is the owner of the property and the appellants and
second respondent are her legal heirs, after the death of Balakrishnan. The
learned 1st Additional Judge further held that the suit property belongs to the
first appellant Saradambal Ammal however, the second respondent alone is
entitled to the petition property as her legal heir. Both the Courts below failed
to consider Exs.P1 to P12, the Encumbrance Certificate and other documents.
The First Appellate Court having given a clear finding that the appellants have
got right in the petition mentioned property, erred in dismissing the appeal.
10.The learned counsel appearing for the appellants further submitted
that the Courts below failed to properly appreciate Order XXI Rule 58 of the
Code of Civil Procedure. The petition under this provision can be filed before
sale. The term sale in the said provision is only when the sale is completed by
confirmation of auction sale. When the petition under Order XXI Rule 58 is
filed, all questions relating to the title of the property attached has to be
adjudicated. In support of his contention, the learned counsel appearing for
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the appellants relied on the following judgments:
(i) AIR 2008 SCC 2069 (Kancherla Lakshminarayana Vs.
Mattaparthi Shyamala and Others) the relevant portion of the judgment
reads as follows:
“ ... 9.Shri Narasimha, learned counsel
appearing on behalf of the appellant invited our
attention to the language of Order XXI Rule 58 CPC
which is as under:
"58. Adjudication of claims to, or
objections to attachment of property.
(1) Where any claim is preferred to, or
any objection 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: Provided that no
such claim or objection shall be
entertained
(a) where, before the claim is preferred
or objection is made, the property
attached has already been sold; or
(b) where the court considers that the
claim or objection was designedly or
unnecessarily delayed. (2) xxxxxx (3)
xxxxxx (4) xxxxxx (5) xxxxxx"
It is pointed by the learned counsel
from the language of the clause (a) of
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proviso to Rule 58(1) that where any
objections are taken to the attachment
on the ground that such property is not
liable to attachment, the court has to
proceed to adjudicate upon the claim or
objections in accordance with the Rule.
Learned counsel further argues that
there is a rider to this Rule in the shape
of a proviso and it is suggested that
such claim or objection need not be
entertained where firstly the property
attached has already been "sold".
Learned counsel points out that merely
because of the auction of the suit
property, it cannot be said that the said
property is sold, thereby leaving no
right in or opportunity with the objector
to object to the attachment. Learned
counsel invited our attention to the
judgment of the Andhra Pradesh High
Court in M/s.Magunta Mining Co. v. M.
Kondaramireddy & Another [AIR
(1983) A.P. 335] where the similar
situation had arisen on the basis of an
application made by the appellant
under Order XXI Rule 58 CPC. The
objector was none else but the son of
the Judgment-Debtor whose property
was auctioned. The objection was that
since there was a prior lease in respect
of the said property and since in
pursuance of that lease the objector-
appellant had been in possession of the
same and, therefore, the attachment
was not valid and has to be vacated. An
objection was also raised that the
properties which were attached were
already sold and, therefore, the
objection to the attachment and the
appeal had become infructuous. The
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Court, therefore, dealt with the effect of
the court sale conducted by the lower
court. It was an admitted position that
before the said order of High Court
reached the sale was already completed
in respect of all the items where the
Decree-holder himself purchased the
properties. It is also seen from the facts
that there the sale was not confirmed.
The Division Bench, speaking through
Hon'ble Jagannadha Roa, J. (as His
Lordship then was) observed in para
15:
"Whenever a claim is preferred under
O. 21 R. 58 CPC against attachment of
immovable properties, the fact that the
properties are sold or the sale
confirmed will not deprive the court of
its jurisdiction to adjudicate on the
claim. The inquiry into the claim can be
proceeded with by the trial court or the
appellate court (under the amended
Code) and in the event of the claim
being allowed, the sale and the
confirmation of sale shall to that extent
be treated as a nullity and of no effect,
as the judgment-debtor had no title
which could pay to the court auction-
purchaser."
(ii) 2012 (5) LW 121, [S.Parimala Vs. A.Mayil & others];
“ ... 15. At this juncture, it is pertinent to refer
to the observations made by the Andhra Pradesh
High Court in Mugunta Mining Co. Vs.
M.Kondaramireddy (AIR-1983-AP-335) which has
been extracted by the Honourable Supreme Court in
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the decision cited supra. It is stated as below:-
"The provisions of Order 21 Rule 59 CPC
show that where before a claim is preferred or
objection made, and the property attached had
already been advertised for sale, the court may, if the
property is immovable, make an order, that, pending
the adjudication of the claim or objection the
property shall not be sold, or that pending such
adjudication, the property may be sold but the sale
shall not be confirmed and any such order may be
made subject to such terms and conditions as to
security or otherwise as the court thinks fit. This
provision therefore provides that pending
adjudication of a claim in respect of immovable
property the court may proceed with the sale but stay
the confirmation. Obviously this has been made with
a view to expedite the sale proceedings so that in the
event of the claim being rejected, the further
proceedings can go on expeditiously. But it is clear
that as long as the sale is not confirmed the status
quo ante can be restored in case the claim is allowed.
It has been held that once the claim petition is
allowed the sale will be treated as void because the
interest of the judgment-debtor that was sold did not
in fact belong to him and the court auction-
purchaser would not get any title to the property as
the judgment-debtor had no interest therein and
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because the claimant continues to retain his interest
in those properties (vide Bibi Umatul Rasul v. Lakho
Kuer -AIR-1941-Pat-405). To the same effect is
Madholal Damlal v. Gajrabi (AIR-1951- Nag-194):
(AIR p. 197, para 17)
16. Bearing in mind the law laid down by the
Honourable Supreme Court, in the present case, the
claim application has been presented on 19.4.2011
on which date, the Executing Court seemed to have
confirmed the sale after returning the application
filed by the Revision Petitioner/ objector. Hence, it is
obvious that the claim application filed by the
revision petitioner has not been disposed of in
accordance with the provisions of Order 21 Rule 58
of CPC even though it was filed even before
confirmation of sale. At this juncture, I am not
inclined to traverse into the merits urged by the
parties, as the contentions raised the parties have to
be substantiated by corroborative evidence and
acceptable
17. It is needless to mention that the
adjudication referred to under Order 21 Rule
58 of CPC not being summary and that it should be a
decision as if rendered in a regular suit resulting in
an appealable decree. Therefore, I am of the view
that a fuller examination of the rights of the parties
has to be held after giving the parties adequate
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opportunity to place all relevant materials, so that it
could ultimately decide and adjudicate on all
questions including questions relating to right, title
or interest in the property attached which either
directly or indirectly arise between the parties to the
proceedings. This not having been done by the Trial
Court, I am constrained to set aside the impugned
order of the learned District Munsif, Madurai and
remit the subject matter back to the learned District
Munsif, Madurai for a fuller and detailed
examination as contemplated under the provisions of
Order 21 Rule 58 of CPC and for an ultimate
decision after adjudication of the rights of the
parties.”
10(a).The learned counsel appearing for the appellants further
submitted that the appellants have rights over the petition property along with
the second respondent and first respondent cannot execute the decree
obtained against the second respondent and sell the property to realise the
amount and prayed for allowing the appeal.
11.Per contra the learned counsel appearing for the respondents 1 & 3
contended that said Saradambal Ammal filed E.A.No.402 of 2007 claiming to
be the owner of the petition property and prayed to declare her as owner of
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the petition property, she is in possession and enjoyment of petition property
and to raise an attachment. The said Saradambal Ammal has not filed any
documents of title and failed to substantiate the title that she is the owner of
petition property. The documents filed by the said Saradambal Ammal which
were marked as Exs.P1 to P12 did not prove her title or title of her husband or
her son R.Pandiyarajan. The learned Trial Judge as well as the First Appellate
Judge considered all the materials placed before them and by well considered
order and judgment, held that said Saradambal Ammal failed to prove her title
that she is owner of the petition property. The contention of the learned
counsel for the appellants that the Court below failed to consider the
provisions of Order XXI Rule 58 of the Code of Civil Procedure and failed to
adjudicate the title of Saradambal Ammal that she is the owner of the petition
mentioned property is not correct and the Courts below have rightly rejected
her claim. There is no reason to interfere with the well considered order and
judgment of the Courts below. No substantial questions of law arises in the
present appeal. The learned counsel for the first respondent referred to the
dates and events filed by her in the appeal and prayed for dismissal of the
appeal.
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12.Though notice has been served on the 2nd respondent and his name
is printed in the cause list there is no representation for him, either in person
or through counsel.
13.Heard the learned counsel appearing for the appellants as well as the
learned counsel appearing for the respondents 1 & 3 and perused the entire
materials on record.
14.The present Civil Miscellaneous Second Appeal is filed against the
fair and final order dated 15.07.2015 passed in C.M.A.No.38 of 2010 on the
file of the 1st Additional District and Sessions Court, Cuddalore confirming the
order dated 23.12.2009 passed in E.A.No.402 of 2007 in E.P.No.59 of 2006
in O.S.No.98 of 2005 on the file of the 1st Additional Sub Court, Cuddalore.
The Civil Miscellaneous Second Appeal is not admitted and no substantial
question of law is framed. The appellants in the grounds of appeal has raised
the following substantial questions of law:
Substantial Questions of Law which arise for consideration are as
follows:
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(i) Whether the finding in para 13 of the Judgment of the Appellate
Court that the 1st Respondent has become the absolute owner of the property
is sustainable in law?
(ii) Whether the findings of the Courts below, without discussing the
Voluminiuous documents filed on the side of the appellant, are sustainable in
law?
(iii) To what relief the Appellants are entitled to?
15.From the materials on record, it is seen that the said Saradambal
Ammal filed E.A.No.402 of 2007 under Order XXI Rule 58 of the Code of
Civil Procedure claiming to be the owner of petition property, declaration that
she is in possession and enjoyment of the property and to raise the order of
attachment. After taking E.A on file, the said Saradambal Ammal examined
herself as P.W.1 and marked 12 documents as Exs.P1 to P12. The first
respondent / decree holder has examined himself as R.W.1 and marked two
documents Exs.R1 and R2. In the C.M.S.A., the learned counsel appearing for
the appellants contended that the Courts below failed to comply Order XXI
Rule 58 of the Code of Civil Procedure. For better appreciation of said
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contention, Order XXI Rule 58 (1) & (2) of the Code of Civil Procedure is
extracted hereunder:
“Order XXI Rule 58 of Code of Civil
Procedure:
58. Adjudication of claims to, or objections
to attachment of, property:-
(1) Where any claim is preferred to, or any
objection 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:
Provided that no such claim or objection
shall be entertained-
(a) where, before the claim is preferred or
objection is made, the property attached has
already been sold; or
(b) where the Court considers that the claim
or objection was designedly or unnecessarily
delayed.
(2) All questions (including questions
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relating to right, title or interest in the property
attached) arising between the parties to a
proceeding or their representatives under this rule
and relevant to the adjudication of the claim or
objection, shall be determined by the Court dealing
with the claim or objection and not by a separate
suit.”
As per Order XXI Rule 58 (2) of the Code of Civil Procedure, when an
application is filed by a party under Order XXI Rule 58 (1), the Court has to
adjudicate all the questions including the questions relating to right, title or
interest in the property attached and no separate suit can be filed in this
regard, with regard to claim of the party to raise all attachment.
16.In the present case, the Trial Court gave opportunity to the applicant
Saradambal Ammal to prove her claim that she is the owner of the petition
property. The said Saradambal Ammal examined herself as P.W.1 and
marked 12 documents. After considering the evidence of Saradambal Ammal
and documents filed by her, the Trial Court dismissed the application holding
that she has not established her title and possession of petition property. This
finding clearly shows that the Trial Court adjudicated the claim of Saradambal
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Ammal and rejected the same. Similarly, the First Appellate Court also
considered all the materials placed before it including the Exs.P1 to P12,
order of Trial Court and dismissed the C.M.A. Therefore the contention of the
learned counsel appearing for the appellants that the Courts below failed to
comply with provisions of Order XXI Rule 58 of the Code of Civil Procedure
is contrary to the order of Trial Court and judgment of First Appellate Court
and is without merits.
17.The only issue in the E.A., C.M.A. as well as in the present
C.M.S.A. is whether the Saradambal Ammal has proved that she is the owner
of the petition property.
18.According to Saradambal Ammal, originally her husband
Sethuraman and her son Pandiarajan were owners of petition property. Even
though the said Saradambal Ammal marked Exs.P1 to P12, she has not
produced any documents of title to show that her husband Sethuraman and
her son Pandiarajan were owners of the property. All the documents filed by
her relates to House Tax Receipt and Encumbrance Certificate. House Tax
Receipts and Encumbrance Certificate do not prove that Sethuraman and
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Pandiarajan were the owners of the petition property and after their death, the
said Saradambal Ammal has become the owner of the property. Except her
oral evidence, she has not produced any acceptable documentary evidence to
prove the ownership of the petition property. Even after the death of
Pandiarajan in the year 1996, House Tax Assessment still stands in the name
of Pandiarajan only. The said Saradambal Ammal has not given any
explanation for not transferring the assessment in her name. Both the Trial
Court as well as the First Appellate Court have considered the evidence placed
before the Courts elaborately and by giving cogent and valid reason, rejected
the claim of the said Saradambal Ammal. In the C.M.S.A., the learned counsel
for the appellants failed to point out any document produced by the
Saradambal Ammal to prove her case that originally her husband Sethuraman
and her son Pandiarajan were owners of petition property and after their
death, she became absolute owner. Therefore, no substantial question of law
arises with regard to finding of the Courts below that the said Saradambal
Ammal failed to prove her ownership of the petition property.
19.The first substantial question of law raised by the appellants has no
relevancy to the issue in the C.M.S.A., as the only issue in the present case is
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whether the said Saradambal Ammal is owner of petition property and she
has proved the same by acceptable evidence and the same is answered against
the appellants.
20.As far as second substantial question of law raised by the appellants
is concerned, both the Courts below have considered all the documents filed
by the said Saradambal Ammal and held that those documents did not prove
the title of Saradambal Ammal. In view of well considered order and judgment
of Courts below, the second substantial question of law raised by the
appellants is answered against the appellants. In view of substantial questions
of law 1 & 2 are answered against the appellants, the appellants are not
entitled to any relief.
21.For the above reasons, this Civil Miscellaneous Second Appeal is
dismissed as devoid of merits. Consequently, connected Miscellaneous
Petition is closed. No costs.
21.01.2022
ata/krk
Index : Yes / No
Internet : Yes / No
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C.M.S.A.No.35 of 2016
To
1.The learned I Additional District and Sessions Judge,
Cuddalore.
2.The learned I Additional Subordinate Judge,
Cuddalore.
V.M.VELUMANI, J.
ata/krk
C.M.S.A.No.35 of 2016
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C.M.S.A.No.35 of 2016
21.01.2022
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