Madras High Court

Jeya Thiruvadi vs Ashokan on 28 September, 2022

                                                                           C.R.P(MD)No.1401 of 2021

                                  BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                                 Dated : 28.09.2022


                                                       CORAM:

                                     THE HONOURABLE MR.JUSTICE B.PUGALENDHI

                                             C.R.P(MD)No.1401 of 2021
                                                       and
                                              CMP(MD)No.3897 of 2021

                Jeya Thiruvadi                                       ... Petitioner
                                                        Vs
                Ashokan                                             ... Respondent

                PRAYER: Civil Revision Petition is filed under Section 115
                of       Civil       Procedure    Code,      to   set    aside   the     fair    and
                decreetal order passed in E.A.No.2 of 2021 in E.P.No.15 of
                2015 in O.S.No.62 of 2014 on the file of the Additional
                District Judge, Tirunelveli dated 03.07.2021.


                                   For Petitioner       : Mr.T.S.R.Venkatramana
                                   For Respondents      : Mr.K.Jeyamohan
                                                            for Mr.K.Prabhu
                                                          ORDER

This civil revision petition is filed as against the

order passed by the learned IV Additional District Judge,

Tirunelveli in E.A.No.2 of 2021 in EP.No.15 of 2015 in

O.S.No.62 of 2014, dated 03.07.2021.

https://www.mhc.tn.gov.in/judis C.R.P(MD)No.1401 of 2021

2.The petitioner had filed an application in E.P.No.15

of 2015 that the property described in the execution

petition belongs to him. The respondent/decree holder

filed the above suit in O.S.No.62 of 2014 as against one

Jeyaravi for recovery of money and the same was decreed in

his favour on 23.12.2014. The respondent/ decree holder

subsequently filed an execution petition in E.P.No.15 of

2015 and also filed an application for attachment and sale

of the immovable property of the judgment debtor Jeyaravi.

The suit property, according to this petitioner, was

purchased by him by way of a registered document on

20.06.2014, even before passing an order of attachment.

He also filed an application to lift the attachment in

E.A.No.56 of 2015, which was dismissed by the learned

IV Additional District Judge, Tirunelveli on 30.07.2018.

Therefore, the petitioner has filed a suit in

O.S.No.352 of 2019 before the Principal Sub Court, Tenkasi

under Order VII Rule 1 and Order XXI Rule 58 (5) CPC to set

aside the attachment. The respondent/ decree holder has

also appeared in the suit and filed his written statement.

The respondent attempted to sell the attached property and

therefore, the petitioner has filed the present

https://www.mhc.tn.gov.in/judis C.R.P(MD)No.1401 of 2021

application in E.A.No.2 of 2021 under Order XXI Rule 59 CPC

to stay the sale, but it has been dismissed by the Court by

its fair and decreetal order dated 30.07.2021.

Aggrieved over the same, the present civil revision

petition is filed along with a civil miscellaneous

petition in CMP(MD)No.7763 of 2022 to receive certain

documents on behalf of the petitioner and to mark them as

Ex.P1 to Ex.P11 in the civil revision petition. This civil

miscellaneous petition has also been taken up along with

the main revision petition for hearing.

3.The learned Counsel for the petitioner submits that

the disputed property originally belongs to one Jeyaravi/

the judgment debtor in O.S.NO.62 of 2014. The said Jeyaravi

executed a settlement deed of the disputed property in

favour of his wife Deivakani by registered document No.1106

of 2013, dated 21.03.2013. The said Deivakani in turn

settled the property to her sister one Tamil Selvi, wife of

one Periyasamy. This Periyasamy was a guarantor to a loan

borrowed by Jeyaravi before the Tamil Nadu Mercantile Bank.

The petitioner brother of Jeyaravi is said to have settled

the dues of Periyasamy. Therefore, Tamil Selvi, wife of

https://www.mhc.tn.gov.in/judis C.R.P(MD)No.1401 of 2021

Periyasamy sold the disputed property to this petitioner by

a registered sale deed on 20.06.2014, vide document No.2172

of 2014. In the meantime the respondent herein has filed

the above suit in O.S.No.62 of 2014 against the judgment

debtor Jeyaravi for recovery of money based on the

promissory note executed by Jeyaravi. Jeyaravi remained

ex-parte in the suit and therefore, the suit was decreed on

23.12.2014. Subsequently the respondent / decree holder

filed an execution petition in E.P.No.15 of 2015 before the

learned Additional District Judge, Tirunelveli on

23.04.2015 and also filed an application in E.A.No.56 of

2015 to attach the petitioner's property. The attachment

was also ordered on 16.09.2015. The petitioner filed an

application to resist the attachment. However, the same was

dismissed on 30.07.2018. Thereafter the petitioner has

filed the above suit in O.S.No.352 of 2019 before the

Principal Sub Court, Tenkasi to set aside the attachment

order under Order XXI Rule 58(5) CPC and the same is

pending. Therefore, by referring the same, petitioner has

filed the above petition in E.A.No.2 of 2021 under Order

XXI Rule 59 CPC to set aside sale of the property and the

https://www.mhc.tn.gov.in/judis C.R.P(MD)No.1401 of 2021

same is dismissed that the petition mentioned property is

advertised for sale in the execution petition,

the petitioner could have filed the petition before the

advertisement for sale and also on the ground that earlier

the application filed by this petitioner to lift the

attachment in E.A.No.56 of 2015 was dismissed by the Court

on 30.07.2018 and therefore, the petitioner cannot maintain

the present application under Order XXI Rule 59 CPC.

4.The learned Counsel for the petitioner submits that

he is having a good case in O.S.No.352 of 2019, which is

pending on the file of the Principal Sub Court, Tenkasi and

if the property is sold pending the suit, the right of the

petitioner would be affected.

5.The learned Counsel for the respondent submits that

this petition is filed at the instance of the judgment

debtor and this petitioner is none other than own brother

of the judgment debtor. The judgment debtor in order to

defeat the claim of the respondent/ decree holder has

created settlement deed in favour of his wife one

Deivakani, who in turn created further settlement deed in

https://www.mhc.tn.gov.in/judis C.R.P(MD)No.1401 of 2021

favour of her sister Tamil Selvi from, whom the petitioner

has purchased the property on 20.06.2014. After filing of

the suit in O.S.No.62 of 2014, the petitioner filed an

application in E.A.No.56 of 2015 to lift the attachment.

The application was elaborately discussed and dismissed on

30.07.2018, as against which, the petitioner has not

preferred any appeal and the same has become final and

therefore, on the very same set of facts, the petitioner is

not entitled to file the present application. Therefore,

there is no reason to interfere with the impugned order.

6.This Court considered the rival submissions and

perused the materials placed on record.

7.The petitioner claims that he has purchased the suit

property on 20.06.2014 by way of a registered document from

one Tamil Selvi in discharge of his liability for the

payments made by this petitioner before the Tamil Nadu

Mercantile Bank. The property was attached by the executing

court in E.A.No.56 of 2015 in E.P.No.15 of 2015 on

16.09.2015 on the pretext that it is the property, which

belongs to Jeyaravi/ the judgment debtor, ie., after the

https://www.mhc.tn.gov.in/judis C.R.P(MD)No.1401 of 2021

petitioner purchased the property on 20.06.2014.

The petitioner's attempt to lift the attachment failed and

therefore, under Order XXI Rule 58(5) of CPC,

the petitioner has filed the suit before the

Principal Sub Judge, Tenkasi in O.S.No.352 of 2019, which

is pending. The respondent / decree holder has also entered

appearance in the suit and has also filed his written

statement. Whether the deed dated 20.06.2014 is valid

consideration or it is sham and nominal document is to be

decided by the trial Court in O.S.No.352 of 2019.

Pending the suit the petitioner has filed the above

application under Order XXI Rule 59 CPC which reads as

follows:

“Stay of sale:- where before the claim was

preferred or the objection was made, the property

attached had already been advertised for sale, the

Court, may -

(a) if the property is movable, make an order postponing the sale pending the adjudication of the claim or objection, or,

(b)if the property is immovable, make an order that, pending the adjudication of the claim or objection, the property shall not be sold, or,

https://www.mhc.tn.gov.in/judis C.R.P(MD)No.1401 of 2021

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.”

8.The executing Court has dismissed the application

that the property for attachment had already been

advertised for sale and the claim application filed to lift

the attachment in E.A.No.56 of 2015 was denied by the Court

on 30.07.2018. This Court is not in agreement of the

reasons assigned in the impugned order and accordingly the

impugned order is set aside. There shall be an order of

interim stay of the sale of the disputed property pending

disposal of O.S.No.352 of 2019.

9.Considering the grievance of the respondent /

decree holder that he obtained the decree in the year 2015,

but the same could not be executed in view of the pendency

of the suit in O.S.No.352 of 2019 and in view of the above

direction of this Court in this petition, this Court

directs the learned Principal Sub Judge, Tenkasi to dispose

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of the suit in O.S.No.352 of 2019 within a period of six

months from the date of receipt of a copy of this order.

The parties shall extend their co-operation for the trial,

without taking any further adjournments in the suit.

10.Accordingly this civil revision petition and the