Madras High Court
Alamelu vs Sakthivel on 27 October, 2022
C.R.P. No. 1787 of 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 27.10.2022
CORAM
THE HONOURABLE MRS. JUSTICE T.V.THAMILSELVI
C.R.P.No. 1787 of 2017
and
C.M.P. No. 8366 of 2017
1. Alamelu,
W/o. Veeman
2. Irusayee,
W/o. Subramani
3. Sekar,
S/o. Veeman
4. Mani,
S/o. Veeman
5. Raja,
S/o. Veeman ... Petitioners
Versus
1. Sakthivel,
S/o. Perumal
1/7
https://www.mhc.tn.gov.in/judis
C.R.P. No. 1787 of 2017
2. United India Insurance Company,
Branch Office,
77-A.A. Street,
Oriental Complex,
Salem-636 001.
3. Elumalai,
S/o. Ramasamy ... Respondents
PRAYER : Civil Revision Petition filed under Art. 227 of Constitution of
India, praying to set aside the fair and decreetal order dated 27.08.2013
made in R.E.A.No.8 of 2011 in R.E.P. No.4 of 2010 in MCOP. No. 901 of
2004 on the file of learned Addl. District Judge, Salem.
For Petitioner : Mr.G.Pugazhenthi
For Respondents : No appearance for R1 to R3
ORDER
The Revision Petitioners herein are the claimants in M.C.O.P. No.901
of 2004 on the file of District Judge, Motor Accident Claims Tribunal,
Salem claiming compensation for the death of husband of 1 st petitioner and
father of other petitioners.
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C.R.P. No. 1787 of 2017
2. The 1st respondent is the owner of the vehicle contested the
M.C.O.P. and finally, an award was passed on 0204.2009 holding that the 1st
respondent is liable to pay compensation and the 2nd respondent insurance
company has no liability. Thereafter, to execute the decree, the claimants
filed execution petition in R.E.P. No. 4 of 2010 before the Addl. District
Court, Salem seeking attachment of immovable property belong to the 1st
respondent. The Execution Court issued notice to the 1st respondent and the
notice was served on the 1st respondent on 24.02.2010. Thereafter, the 1st
respondent has not raised any objections and accordingly, the property was
attached on 21.09.2011 (item no.1). Thereafter, the third party Elumalai
filed an application in E.A. No. 8 of 2011 claiming that he is the owner of
the property based upon the sale deed dated 19.05.2010. Based upon that
application, the Execution Court ordered attachment of item No.1 of the
property. However, the the learned counsel for Decree holder/claimant
submitted that after the execution of notice, in order to defraud the claim
amount, the judgment debtor purposely executed the sale deed in favour of
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C.R.P. No. 1787 of 2017
the said Elumalai, as such is not maintainable in law. But, the Execution
Court failed to appreciate the said fact.
3. Despite notice served on the respondents, there is no representation
on the side of respondents. In the year of 2004, the claimants have filed the
claim application and the claim award was passed against the 1st respondent,
who is owner of vehicle. To execute the decree, the claimants filed the
execution petition in E.P. No. 4 of 2010, but to avoid the claim, purposely,
the 1st respondent executed the sale deed on 19.05.2010. On perusal of
records, it would clearly reveals that in the year of 2004, the husband of 1st
petitioner was died in the accident due to the negligence of 1st
respondent/judgment debtor and the M.C.O.P. Petition was contested by
him before the trial court. Accordingly, the learned Tribunal allowed the
claim petition holding that the insurance company is not liable to pay
compensation and only the 1st respondent/judgment debtor is liable to pay
the claim amount. After service of notice in the month of February by
Execution Court, in the month of May 2010, the judgment debtor executed
the sale deed in favour of third party Elumalai, which would clearly shows
that to avoid the claim of decree holder, he executed the sale deed, which is
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C.R.P. No. 1787 of 2017
a sham and nominal document. Having knowingfully well about the
execution proceedings, he would have executed the sale deed in favour of
third party Elumalai as he wanted to defraud the claim of decree holder.
Therefore, the alleged sale transfer in the name of Elumalai would not bind
the claimants, because they have already initiated execution proceedings,
but the trial court erroneously allowed the execution application by raising
attachment, as such is erroneous one and hence, the same is liable to be set
aside. Accordingly, this Civil Revision Petition is allowed and the order
passed by the learned trial judge in R.E.A.No. 8 of 2011 is set aside and in
respect of item no.1 of petition schedule property is ordered to be attached.
No costs. Consequently, the connected Civil Miscellaneous Petition is also
closed.
27.10.2022
Index : Yes/No
Internet: Yes/No
Speaking/Non Speaking order
rpp
To
I Addl. District Judge,
https://www.mhc.tn.gov.in/judis
C.R.P. No. 1787 of 2017
Salem.
T.V.THAMILSELVI, J.
rpp
C.R.P.No. 1787 of 2017
https://www.mhc.tn.gov.in/judis
C.R.P. No. 1787 of 2017
27.10.2022
https://www.mhc.tn.gov.in/judis
