Madras High Court
R.Srinivasan vs N.Elayaperumal on 7 July, 2022
C.R.P.(PD)No.1289 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 07.07.2022
CORAM :
THE HONOURABLE MS. JUSTICE R.N.MANJULA
C.R.P.(PD)No.1289 of 2022
and
C.M.P.No.6882 of 2022
R.Srinivasan ... Petitioner
..Vs..
N.Elayaperumal ... Respondent
Prayer :- Civil Revision Petition filed under Article 227 of the
Constitution of India, to set aside the order dated 08.03.2022 passed in
I.A.No.200 of 2020 in O.S.No.58 of 2020 by the learned Principal Sub
Judge, Puducherry.
For Petitioner : Mr.S.Giritharan
For Respondent : Mr.Elangovan
ORDER
This Civil Revision Petition has been preferred challenging the
order dated 08.03.2022 passed in I.A.No.200 of 2020 in O.S.No.58 of
2020 by the learned Principal Sub Judge, Puducherry.
2.The revision petitioner is the plaintiff, who has filed the suit in
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C.R.P.(PD)No.1289 of 2022
O.S.No.58 of 2020 for recovery of money. During the pendency of the
suit, he filed an application under Order XXXVIII Rule 1 and 2 C.P.C r/w
Section 151 C.P.C for Attachment Before Judgment and the said
application was dismissed. Aggrieved over the same, the petitioner has
filed the present revision petition.
3. The learned counsel for the petitioner/plaintiff submitted that
since the respondent/defendant attempts to encumber the properties
belonging to the petitioner and it will not be possible for him to recover
the dues, even if the decree is passed in the suit ; the learned trial Judge
has wrongly construed the implication of Ex.P7/Encumbrance Certificate
pertaining to certain entries and presumed that the property is not in the
hands of the defendant and disallowed the prayer for attachment.
4.The learned counsel for the respondent submitted that the
plaintiff has not chosen to file the said application at the time of filing the
suit, but he filed the application when the suit is riped for
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C.R.P.(PD)No.1289 of 2022
arguments and further that properties sought to be attached have already
been encumbered/alienated by the defendant and hence, the learned trial
Judge is right in dismissing the application.
5. On perusal of the order of the leaned trial Judge, it is seen that
the relief sought for is dismissed on the observation that the entries in the
Ex.P7/Encumbrance Certificate showed that the property has already
been alienated in favour of the defendant’s son one Sathish even before
the date of the issuance of Ex.P1/cheque. On the above said ground the
learned Principal Sub Judge, Puducherry has dismissed the petition.
6. Further on perusal of the particulars of the property furnished in
the petition filed for attachment before judgment, the following
particulars are seen :-
''SCHEDULE OF PROPERTIES
A Schedule Property :
All the piece and parcels of lands in Registration
District of Chidambaram, Sub-District of
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C.R.P.(PD)No.1289 of 2022
Puduchathiram, Parangipettai Panchayat Union,
Thatchakkadu Panchayat, Manikkollai Village,
bearing New Survey No.82/1 C1, Old Survey
No.82/1C of an extent of 12.36 Ares.
B Schedule Property :
All the piece and parcels of lands in
Registration District of Chidambaram, Sub-
District of Puduchathiram, Parangipettai
Panchayat Union, Thatchakkadu Panchayat,
Manikkollai Village, bearing New Survey No.82/1
C2, Old Survey No.82/1C of an extent of 614 sq
mts or 6609 sq.ft.
Boundaries which are :
West of plot belongs to T.Periyanayagam Ammal,
South of plot belongs to Perumal Samuttiyar,
East of plot belongs to N.Srinuvasan Nattar,
North of Thaar Road.''
7. From the above said details of the property, it is made clear that
the petitioner intended to attach an extent of 12.36 ares in New Survey
No.82/1C1 which correspondence to Old Survey No.82/1C. The entries in
Ex.P7/Encumbrance Certificate would show that Sl.No.1 pertains to the
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C.R.P.(PD)No.1289 of 2022
sub-divided item No.82/1C2. Despite allowing S.No.82/1C, the petitioner
sought to attach the sub-divided property in S.No.82/1C1. The other
entries in the Encumbrance Certificate would show that there is a sale
executed in favour of one Venkatesha Perumal by one
N.Srinuvasan Nattar. In that also it is seen that the property dealt is
situated at Survey No.82/1C1. There is an another entry in Sl.No.2 which
is a Sale Deed executed by the defendant in favour of one Ganesan.
8. Since larger extent is involved in S.No.82/1C1, it has to be seen
whether there is any remaining extent of property in S.No.82/1C1 in the
hands of the respondent/defendant and that is available for attachment.
So, I feel it is appropriate to remit the matter back to the learned Principal
Sub Judge, Puducherry to consider the above aspects and pass orders
afresh. The respective parties are at liberty to produce the relevant
documents pertaining to the entries in the Encumbrance Certificate in
order to show whether or not any remaining property is available in the
hands of the respondent on date of execution of Ex.P1/Cheque or whether
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C.R.P.(PD)No.1289 of 2022
the entire property in S.No.82/1C1 has been alienated in favour of the
third parties.
9. With the above observations, this Civil Revision Petition is
allowed and the order dated 08.03.2022 passed in I.A.No.200 of 2020 in
O.S.No.58 of 2020 is set aside and the matter is remanded back to the
learned Principal Sub Judge, Puducherry, who shall consider the issue
afresh after giving opportunity to both the parties to produce documents
and shall dispose it in accordance with law. No costs. Consequently,
connected miscellaneous petition is closed.
07.07.2022
Index:Yes No
Speaking Order:Yes/No
ms
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C.R.P.(PD)No.1289 of 2022
To
The Principal Sub Judge,
Puducherry.
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C.R.P.(PD)No.1289 of 2022
R.N.MANJULA, J.
ms
C.R.P.(PD)No.1289 of 2022
and
C.M.P.No.6882 of 2022
07.07.2022
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