Madras High Court
K.Krishnamurthy vs Kalpatharu Benefit Fund Ltd on 10 October, 2022
O.S.A.Nos.264 to 266 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 10.10.2022
CORAM
The Hon'ble Mr. Justice PARESH UPADHYAY
and
The Hon'ble Mr. Justice D.BHARATHA CHAKRAVARTHY
O.S.A.Nos. 264 to 266 of 2022
O.S.A.No.264 of 2022
K.Krishnamurthy .. Appellant
vs
1.Kalpatharu Benefit Fund Ltd.,
Rep. By its Director P.R.Balaji,
134, Rasappa Chetty Street,
Chennai – 600 003.
Anantharaman (Died)
2.Padma .. Respondents
(Cause title accepted vide order
dated 30.08.2022 made in
CMP 3687/22 in OSA Sr.105006/21)
O.S.A.No.265 of 2022
K.Krishnamurthy .. Appellant
vs
1.T.Gunaraj
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O.S.A.Nos.264 to 266 of 2022
2.Kalpatharu Benefit Fund Ltd.,
Rep. By its Director P.R.Balaji,
134, Rasappa Chetty Street,
Chennai – 600 003.
Anantharaman (Died)
3.Padma .. Respondents
(Cause title accepted vide order
dated 30.08.2022 made in
CMP 21343 /21 in OSA Sr.3038 /21)
O.S.A.No.266 of 2022
K.Krishnamurthy .. Appellant
vs
1.Kalpatharu Benefit Fund Ltd.,
Rep. By its Director P.R.Balaji,
134, Rasappa Chetty Street,
Chennai – 600 003.
Anantharaman (Died)
2.Padma .. Respondents
(Cause title accepted vide order
dated 30.08.2022 made in
CMP 21341 /21 in OSA Sr.3044/21)
Prayer in O.S.A.No.264 of 2022: Appeal filed under Order
XXXVI Rule 11 of Original Side Rules read with Clause 15 of Letters
Patent against the order dated 23.03.2020 made in Application No.170
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O.S.A.Nos.264 to 266 of 2022
of 2020 in A.No.7261 of 2017 in E.P.No.2494 of 2010 in C.S.No.867 of
2001.
Prayer in O.S.A.No.265 of 2022: Appeal filed under Order
XXXVI Rule 11 of Original Side Rules read with Clause 15 of Letters
Patent against the order dated 23.03.2020 made in Application No.172
of 2020 in A.No.7266 of 2017 in Proclamation No.4 of 2015 in
E.P.No.2494 of 2010 in C.S.No.867 of 2001.
Prayer in O.S.A.No.266 of 2022: Appeal filed under Order
XXXVI Rule 11 of Original Side Rules read with Clause 15 of Letters
Patent against the order dated 23.03.2020 made in Application No.171
of 2020 in A.No.7261 of 2017 in E.P.No.2494 of 2010 in C.S.No.867 of
2001.
For Appellant : Ms. Sarojini Govindan
in all the appeals
COMMON JUDGMENT
(Delivered by D.BHARATHA CHAKRAVARTHY.,J)
The appellant, who is the Judgment Debtor No. 2, in the suit of
the year 2001, C.S.No.867 of 2001, and the execution petition of the
year 2010, E.P.No.2494 of 2010, approached the learned Master of
this Court by filing two applications in A.Nos.7261 of 7266 of 2017
praying to set aside the ex-parte order dated 15.09.2010 passed in
E.P.No.2494 of 2010 and to set aside the sale dated 20.06.2016. The
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O.S.A.Nos.264 to 266 of 2022
learned Master dismissed both the applications and also imposed
Rs.10,000/- as costs. Aggrieved by the above orders of the learned
Master, the appellant filed applications in A.Nos.170, 171 and 172 of
2020, which were taken up and disposed by a common order dated
23.03.2020 by the learned Single Judge, against which, these appeals
are filed.
2. Learned Single Judge found that the prayer for setting
aside the ex-parte order in the execution petition was rightly rejected
by the learned Master inasmuch as the appellant had received the
private notice and the said fact has been suppressed in the application
and the application is filed as if no notice was served on him. As far as
the application for setting aside the sale on the ground of fraud is
concerned, the learned Single Judge found that the allegation of fraud
was made against the other Judgment Debtor in relation to the
application for payment out. As far as the sale is concerned, there is
no allegation of fraud. Given the fact that the appellant and the other
judgment debtor jointly sold the second floor of the same property to
the auction purchaser, the learned Single Judge rejected the allegation
of fraud.
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O.S.A.Nos.264 to 266 of 2022
3. The Learned Single Judge further found that given the
delay and the manner in which the proceedings are taken up by the
appellant herein, the learned Master was justified in imposing costs
and therefore confirmed the order of the learned Master. Feeling
aggrieved, these intra court appeals are laid before us under Clause 15
of the Letters Patent.
4. Learned counsel appearing on behalf of the appellant
would submit that the original memorandum of compromise entered
into between the parties did not reflect the sum of Rs.53 lakhs which is
mentioned in the decree. Therefore, the Judgment Debtor No. 1, was
in collusion with the plaintiff in the suit and therefore, there is a fraud.
Secondly, by taking this Court to the two advertisements published in
the news papers, learned counsel submitted that in one advertisement
all the three floors in entirety was mentioned, whereas in the second
advertisement, only the first floor is mentioned and, therefore that also
amounts to fraud and that would vitiate the sale. Learned counsel,
further taking this Court to the application filed by the first judgment
debtor for payment out, would submit that the second judgment
debtor was left out clandestinely in the payment out application and
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O.S.A.Nos.264 to 266 of 2022
that also amounts to fraud. Therefore, she would submit that, in this
case, the plaintiff in the suit, the Judgment Debtor No.1, and the
auction purchaser have colluded and committed fraud and therefore,
even though there is delay in filing the application, the application
should have been entertained by the learned Master. She would
further submit that in this case, court notice was not served and only
private notice was served, which ought not to have been taken as valid
service on the appellant herein. In support of her contentions, learned
counsel relied upon the following judgments:
1. Kandaswami Mudali Vs. K.R.Narasimha Aiyar and Others (AIR
1952 Madras 582)
2. Vepa Satyanarayanamurthy Vs. Chekka Bhavanarayana and
Others (AIR 1957 Andhra Pradesh 185)
3. Smt.Bhabani Dasya and Others Vs. Tulsi Rak Keot (deceased by
Lrs.) and Others (AIR 1990 Gauhati 90)
4. Nani Gopal Paul Vs. T.Prasad Singh ((1995) 3 SCC 579)
5. Smt.Arati Daw Vs. Pradip Roy Chowdhury and Other (AIR 2003
Calcutta 218)
5. Learned counsel would submit that, the propositions laid
down in these judgments, would clearly favour the case of the
appellant wherein the Courts have interfered with the sale irrespective
of efflux of time whenever fraud is being pointed out on behalf of the
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O.S.A.Nos.264 to 266 of 2022
aggrieved person. Therefore, she would pray that the order of the
learned Single Judge as well as the order of the learned Master
requires interference.
6. We have considered the submissions made by the learned
counsel appearing on behalf of the appellant and perused the material
records of the case.
7. As far as the allegation of fraud is concerned, firstly we
find that while specific reference made regarding the action of the
Judgment Debtor No. 1 in filing the payment out application without
making the appellant as a party, the prayer is directed only as against
the sale and the appellant has specifically omitted to make any prayer
as against the application for payment out and therefore the learned
single Judge has rightly taken that into consideration. Secondly,
whenever notice is ordered, whether private notice or court notice,
receipt of one of the same would amount to valid and proper service
and the only ground on which the set aside application was filed was
non-receipt of notice. In this regard, the learned Master had found that
the acknowledgement card for service contained the signature of the
appellant and held that the private notice has been served. The said
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O.S.A.Nos.264 to 266 of 2022
fact is not disputed before us. Since the notice has been served and
the said fact has been suppressed in the application filed by the
appellant, there was no question of setting aside the exparte order, on
a belated application, filed with false reason that no notice was served.
8. Further, the allegation of fraud which is raised in this case
firstly is relating to the Decree. Once decree has been passed, in the
execution proceedings, the validity or correctness of mentioning Rs.53
lakhs in the decree cannot be agitated by the appellant. As far as the
alleged fraud committed by the other Judgment Debtor in filing the
payment out application is concerned, the learned single Judge and the
learned Master have rightly considered the fact that not even a prayer
has been made to set aside the order made in the payment out
application and further considering the fact that both the appellant and
the first judgment debtor have jointly sold the second floor of the
property in favour of the same auction purchaser, the allegation of
fraud has been rightly rejected by the learned Master as well as the
learned single Judge.
9. The judgments cited supra, relied upon by the learned counsel
for the appellant would come to the aid if only we are satisfied about
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the allegation of fraud and the non-service of notice, which is not the
fact in this case and therefore none of the judgments relied upon by
the learned counsel for the appellant are applicable to the facts and
circumstances of the instant case. We do not find any ground to
interfere with the well considered order of the learned single Judge.
These appeals are without any merit and they are liable to be
dismissed.
10. In the result, finding no merits, these appeals are
dismissed. No costs.
(P.U., J) (D.B.C., J)
10.10.2022
Index:No
mmi/2
To
The Sub Assistant Registrar,
Original Side, High Court, Madras.
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O.S.A.Nos.264 to 266 of 2022
PARESH UPADHYAY, J.
and
D.BHARATHA CHAKRAVARTHY, J.
mmi
O.S.A.Nos.264 to 266 of 2022
10.10.2022
https://www.mhc.tn.gov.in/judis
