Madras High Court
K.Lavanya vs Raja K.Sathyanarayana (Died) on 17 August, 2023
C.M.S.A.No.41 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 17.08.2023
CORAM :
THE HON'BLE MR. JUSTICE P.VELMURUGAN
C.M.S.A.No.41 of 2021
K.Lavanya ... Appellant
Vs.
1. Raja K.Sathyanarayana (Died)
[ R4 brought on record as L.R's of the deceased
R1 vide Court order dated 27.04.2023 made in
C.M.P.No.6207 and 6211 of 2022 in
C.M.S.A.No.41 of 2021 ]
2. J.Kondasamy
3. Raja K.Dhandapani (Died)
[ R6 to R9 are brought on record as L.R's of the deceased
R3 vide Court order dated 10.04.2023 made in
C.M.P.No.6214 of 2022 in C.M.S.A.No.41 of 2021 ]
4. Bala Kailka Rajalu
5. Vasantha (Died)
[ R4 brought on record as L.R's of the deceased
R5 as per the memo dated 03.03.2023 and vide Court
order dated 10.04.2023 made in C.M.S.A.No.41 of 2021 ]
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6. D.Kokila
7. S.Kalpana
8. Sri Lakshmi
9. Ranjini Kanth ... Respondents
Civil Miscellaneous Second Appeal filed under Order 43 Rule 1
read with Section 100 of Civil Procedure Code to set aside the judgment and
decree dated 19.06.2019 in C.M.A.No.9 of 2014 on the file of the III
Additional District and Sessions Court, Coimbatore confirming the fair and
decretal order dated 19.02.2014 in E.A.No.621 of 2010 in E.P.No.131 of
2008 in O.S.No.305 of 1994 on the file of the II Additional Subordinate
Judge's Court, Coimbatore.
For Appellant : Mr.C.R.Prasanan
For Respondents : Mr.P.M.Duraiswamy
for R6 to R9
No appearance for R2
R1, R3 and R5 – Died
R4- Notice Refused
No
JUDGMENT
Challenging the judgment dated 19.06.2019 made in
C.M.A.No.9 of 2014 on the file of the III Additional District and Sessions
Court, Coimbatore, confirming the order dated 19.02.2014 made in
E.A.No.621 of 2010 in E.P.No.131 of 2008 in O.S.No.305 of 1994 on the
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C.M.S.A.No.41 of 2021
file of the II Additional Subordinate Court, Coimbatore, the appellant being
the third party has filed the present appeal.
2. Brief averments of the case are as follows :
The appellant herein is the daughter of the second respondent
herein/judgment debtor in O.S.No.305 of 1994 on the file of the Subordinate
Court, Coimbatore. The first respondent herein/decree holder filed the suit in
O.S.No.305 of 1994 for recovery of money from the second respondent
herein and obtained an ex-parte decree and filed Execution Petition in
E.P.No.131 of 2008 for attachment and sale of the property. Prior to the
filing of the Execution Petition, the father of the appellant/second respondent
herein has settled the petition mentioned property in favour of the appellant,
vide registered settlement deed dated 03.12.2004 and she took possession
and was in enjoyment of the property as absolute owner. However, the
decree holder, without even obtaining Encumbrance Certificate, brought the
suit property for sale, though after proclamation, upset price was fixed on
the petition mentioned property and without adopting the procedures, the
decree holder himself set up his brother in the Court auction. Even without
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C.M.S.A.No.41 of 2021
adhering to the procedure, the decree holder purchased the property through
Court auction in the name of his brother/third respondent herein. Since on
the date of attachment on 18.01.2006, the judgment debtor never had any
right and title over the petition mentioned property, the appellant was put in
possession and enjoyment of the said property. Therefore, the appellant filed
an application in E.A.No.621 of 2010 in E.P.No.131 of 2008 before the
learned II Additional Subordinate Judge, Coimbatore under Order XXI Rule
97 C.P.C to record the obstruction of the petitioner/appellant for delivery of
possession of the petition mentioned property to the third respondent herein.
However, the Execution Court failed to consider the factual aspects and
dismissed the application. Challenging the same, the appellant herein filed
C.M.A.No.9 of 2014, which came to be dismissed on 19.06.2019. Aggrieved
by the said judgment, the appellant has come forward with the present
appeal.
3. The learned counsel for the appellant has submitted that the
first respondent/decree holder suppressed the material facts and wrongly
filed execution petition to attach the property of the appellant, even without
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C.M.S.A.No.41 of 2021
adhering the execution proceedings and brought the property on sale and the
third respondent herein took the property in Court auction on 10.08.2009.
However, prior to the attachment, the appellant has got right and title over
the petition mentioned property, and therefore, the order passed by the
Execution Court in E.P.No.131 of 2008 either for attachment or sale, is not
valid and the same would not bind the appellant.
4. When the matter came up for hearing on 09.08.2023, this
Court advised both the counsel that since the father of the appellant, who is
the judgment debtor obtained loan from the first respondent, he did not
contest the suit and ex-parte decree was passed, however, the appellant has
benefited the property of his father. By applying principles of equity, since
the appellant is enjoying the property of the judgment debtor by way of
settlement, morally, she is responsible to clear the debts owned by her
father.
5. The learned counsel for the appellant fairly conceded the
same and also ready to pay the auction purchase amount along with interest
at the rate of 15% from the date of decree till 30.08.2023, which comes to
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C.M.S.A.No.41 of 2021
Rs.3,39,540/- to the respondents. The learned counsel for the appellant filed
an affidavit of undertaking dated 15.08.2023 along with memo of
calculation dated 15.08.2023 to that effect. The learned counsel appearing
for the respondents 6 to 9 accepted the same.
6. Considering the facts and circumstances and the submissions
made by the learned counsel on either side and also considering the affidavit
of undertaking dated 15.08.2023 and memo of calculation dated 15.08.2023
filed by the appellant, this Court directs the appellant to deposit the entire
amount of Rs,3,39,540/- to the credit of O.S.No.305 of 1994 on the file of
the Principal Subordinate Court, Coimbatore, on or before 30.08.2023 and
on such deposit, the respondents 6 to 9 are permitted to withdraw the
deposited amount and the trial Court shall permit them to withdraw the said
amount without filing any formal application. Failure to deposit the said
amount, this appeal shall stand dismissed automatically, without further
reference to this Court.
7. The impugned order passed in E.A.No.621 of 2010 in
E.P.No.131 of 2008 is set aside and the appellant is entitled to retain the
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possession of the suit property.
8. Since the matter has been compromised between the parties,
this Court not dealing with the Substantial Questions of Law.
9. With the above direction and observations, this Civil
Miscellaneous Second Appeal is partly allowed. There shall be no order as to
costs.
17.08.2023
Note : Issue Order Copy on 18.08.2023
Index: Yes/No
Speaking Order/Non-Speaking Order
Neutral Citation Case : Yes/No
ms
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C.M.S.A.No.41 of 2021
To
1. The III Additional District and Sessions Judge,
Coimbatore.
2.The II Additional Subordinate Judge,
Coimbatore.
3.The Section Officer,
V.R.Section,
High Court, Madras.
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C.M.S.A.No.41 of 2021
P.VELMURUGAN, J.
ms
C.M.S.A.No.41 of 2021
17.08.2023
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