Madras High Court
Ekambaram vs R.Sampath ... 1St on 8 March, 2022
C.R.P.(NPD) Nos.1913 & 1914 of 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 08.03.2022
CORAM : JUSTICE N.SESHASAYEE
C.R.P.(NPD) Nos.1913 & 1914 of 2020
and C.M.P.Nos.11716, 11721 of 2020
and C.M.P.Nos.7155, 7159 & 18325 of 2021
C.R.P.(NPD) No.1913 of 2020 :
Ekambaram ... Petitioner
(Cause-title accepted vide order dated
30.09.2020 made in CMP.No.10913/2020
in CRP.SR.63188 of 2020)
Vs.
1.R.Sampath ... 1st Respondent / Petitioner /
Auction Purchaser
2Thirugnanasamandam ... 2nd Respondent / 1st Respondent /
1st J.D / 1st Defendant
3.T.Gunasundari ...3rd Respondent / 2nd Respondent /
2nd J.D / 2nd Defendant
4.Natarajan ... 4th Respondent / 3rd Respondent /
Decree Holder / Plaintiff
https://www.mhc.tn.gov.in/judis
C.R.P.(NPD) Nos.1913 & 1914 of 2020
C.R.P.(NPD) No.1914 of 2020 :
Ekambaram ... Petitioner / Claimant / 3rd Party
Vs.
1.Natarajan ... 1st Respondent / 1st Respondent /
Decree Holder / Plaintiff
2Thirugnanasamandam ... 2nd Respondent / 2nd Respondent /
1st J.D / 1st Defendant
3.T.Gunasundari ... 3rd Respondent / 3rd Respondent /
2nd J.D / 2nd Defendant
4.R.Sampath ... 4th Respondent / 4th Respondent /
Auction Purchaser
Prayer in C.R.P.(NPD) No.1913/2020 : Civil Revision Petition filed under
Article 227 of the Constitution of India, praying to set aside the order
passed in E.P.No.173 of 2009 in E.P.No.355 of 2006 in O.S.No.1100 of
2004 dated 29.01.2020 on the file of the learned District Munsif Court,
Katpadi, Vellore.
Prayer in C.R.P.(NPD) No.1914/2020 : Civil Revision Petition filed under
Article 227 of the Constitution of India, praying to set aside the order
passed in E.A.No.38 of 2010 in E.P.No.173 of 2009 in O.S.No.1100 of
2004 dated 26.08.2015 on the file of the learned District Munsif Court,
Katpadi, Vellore District.
https://www.mhc.tn.gov.in/judis
C.R.P.(NPD) Nos.1913 & 1914 of 2020
For Petitioner : Mr.R.Tholgappian
(in both CRPs)
For Respondents : Mr.Richordson Wilson [R1]
(in CRP.1913/2020) R2 to R4 – No appearance
For Respondents : Mr.Richordson Wilson [R4]
(in CRP.1914/2020) R1 to R3 – No appearance
COMMON ORDER
The revision petitioner herein is the obstructor in the execution proceedings in
E.P.No.173/2009 filed by the auction purchaser of a certain property, which he
come to purchase in the execution proceedings in a money suit (originally was
O.S.No.284/2002, and subsequently was re-numbered as O.S.No.1100/2004 on
the file of District Munsif Court, Katpadi).
2. The minimum facts are that the decree holder filed O.S.No.284 of 2002 for
money and it came to be decreed exparte on 12.04.2006. In between, an order of
ABJ was passed by the trial Court in I.A.No.466 of 2002 in OS.No.284/2002 on
31.12.2002.
3. Heard Mr.R.Tholgappian, learned counsel for the revision petitioner and
Mr.Richordson Wilson for the first and fourth respondent respectively in
CRP(NPD) Nos.1913 & 1914 of 2020.
https://www.mhc.tn.gov.in/judis
C.R.P.(NPD) Nos.1913 & 1914 of 2020
4. The case of the revision petitioner is that on 02.01.2002, before the order of
ABJ was passed, he entered into an agreement with the judgment debtor for
purchase of the property, and that he had purchased the property vide sale deed
dated 21.06.2004.
5. The Execution Court vide its order dated 29.01.2020, has disposed of
E.P.No.173/2009 filed by the auction purchaser for delivery of the property, and
vide order dated 26.08.2015, dismissed the E.A.No.38/2010, filed by the revision
petitioner, obstructing the said delivery. In the course of enquiry into
E.A.No.38/2010 filed by the revision petitioner, documents were filed, which
inter alia includes the encumbrance certificate pertaining to the property to show
that the order of attachment passed in I.A.No.466 of 2002, indeed was
communicated to the Sub Registry in terms of Order XXXVIII Rule 11(b) CPC.,
After considering the same, the Execution Court dismissed E.A.No.38/2010 filed
by the revision petitioner, and ordered delivery in E.P.No.173/2009 filed by the
auction purchaser.
6. Both the orders passed in E.A.38/2010 and E.P.No.173/2009 are challenged
herein by the revision petitioner / obstructor.
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C.R.P.(NPD) Nos.1913 & 1914 of 2020
7. Mr.Richordson Wilson, learned counsel for the auction purchaser circulated a
copy of Ext.P9, an encumbrance certificate. It shows that an order of attachment
before judgement passed in I.A.No.446/2002 in O.S.No.284/2002, was registered
even in 2003. The revision petitioner herein admittedly had purchased the
property only on 21.06.2004.
8. As outlined earlier, the property attached was brought to sale at the instance of
the decree holder in E.P.No.355/2006, in which, the auction purchaser was the
successful bidder. Subsequently, the auction purchaser took out an application in
E.P.No.173 of 2009, for delivery of the property. At this juncture, the present
revision petitioner came up with E.A.No.38/2010, obstructing the delivery under
Order XXI Rule 97 CPC., on the ground that he had purchased the property from
the judgment debtor/2nd respondent herein, on 21.06.2004.
9. Order XXXVIII Rule 11(b) of CPC., mandates that every order of attachment
before judgement shall be communicated to the concerned Sub Registry. Once
the same is done, there cannot be any challenge to the legality of the interim
attachment made. When once an order of attachment is validly made, Section 64
of CPC. steps in. It renders all the private alienation, post the order of
attachment, void. Necessarily, the revision petitioner cannot have any title in him
based on the sale deed dated 21.06.2004 to resist delivery of property. This
https://www.mhc.tn.gov.in/judis
C.R.P.(NPD) Nos.1913 & 1914 of 2020
Court, therefore finds that the orders of the Execution Court both in E.P.No.173
of 2009 and E.A.No.38/2010 is in order, and does not warrant any interference.
Accordingly, both the revisions are dismissed. No costs. Consequently, connected
miscellaneous petitions are closed.
10. This Court also directs that any amount which the revision petitioner have
deposited in the Court, be refunded to him. The revision petitioner made a
fervent plea that he has been doing business in the premises, and that his
livelihood will be destroyed, if delivery is ordered, and he offered to settle the
matter with the auction purchaser. This issue is left open, and the Execution
Court may consider exploring the possibility of amicable settlement, and the
parties shall negotiate as between themselves.
08.03.2022
Index : Yes / No
Internet : Yes / No
Speaking order / Non-speaking order
ds
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C.R.P.(NPD) Nos.1913 & 1914 of 2020
N.SESHASAYEE.J.,
ds
To:
The District Munsif
Katpadi
Vellore District.
C.R.P.(NPD) Nos.1913 & 1914 of 2020
08.03.2022
https://www.mhc.tn.gov.in/judis
