Madras High Court
Lavanya vs Lakshmi on 28 March, 2023
CMA.No. 1516 of 2008
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 28.03.2023
CORAM:
THE HONOURABLE MR. JUSTICE D.KRISHNAKUMAR
AND
THE HONOURABLE MRS JUSTICE K. GOVINDARAJAN THILAKAVADI
C.M.A.No. 1516 of 2008
Lavanya ... Appellants
Vs.
1. Lakshmi
2. Major Karthick
3. Major Kumar
4. Kumaravadivel ... Respondents
Appellants 2 and 3 declared as major
and discharged the guardianship 1st
appellant vide order of Court dated
30.11.2016 by PSNJ & RSMJ made in
M.P.No. 1 to 4/2014 in CMA.No. 1516/2008
PRAYER: Civil Miscellaneous Appeal is filed under Section 196 Order 21
Rule 58(4) C.P.C. read with Section 19 of Family Courts Act, 1984 against
the judgment and decree of the Family Court, Coimbatore dated
26.09.2007, E.A.No. 2 of 2007 in E.P.No. 15 of 2005 in O.S.No. 5 of 1995.
For Appellant : Mr. S.D. Venkadesan
for Mr. A. Ravichandran
For Respondents : R1 died
Mr. K. Mayilsamy
for respondents 2 and 3
No appearance for fourth respondent
Batta due with Reg fourth respondent
1/8
https://www.mhc.tn.gov.in/judis
CMA.No. 1516 of 2008
JUDGMENT
[Judgment of the Court was delivered by
D.KRISHNAKUMAR, J.]
The appellant herein, who is a third party, has filed E.A.No. 2 of 2007
in E.P. No. 15 of 2005 in O.S.No. 5 of 1995 before the Court below.
2. According to the appellant, the first respondent is the wife of fourth
respondent and respondents 2 and 3 are the sons of fourth respondent.
The respondents 1 to 3 had filed the suit in O.S.No. 5 of 1995 on the file of
the Family Court, Coimbatore for the relief of decree for payment of
Rs. 500/- per month as maintenance to the respondents 1 to 3 and also to
create charge over the suit schedule 1 property towards the maintenance
and direct the respondent 4 and 5 to pay a sum of Rs. 1,00,000/- with all
jewels and for other reliefs sought for in the aforesaid suit. After the trial,
the Family Court has passed the decree in favour of respondents 1 to
3/decree holders on 07.03.1999. The respondents 1 to 3 have filed the E.P.
No. 15 of 2005 for payment of the maintenance amount based on the
decree passed in the suit and also bring the property for auction for settling
the said arrears amount to the plaintiffs/petitioners. At this stage, the
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CMA.No. 1516 of 2008
Execution Application No. 2 of 2007 was filed by the appellant herein
claiming the right over the property, stating that the suit property was
purchased by her. In the said Execution Application, she claimed that an
enquiry to be conducted with regard to the title of the suit schedule
property and the attachment over the suit schedule property to be set
aside.
3. The said application in E.A.No. 2 of 2007 in E.P.No. 15 of 2005 in
O.S.No. 5 of 1995 was dismissed by the Family Court by its order dated
26.09.2007 and challenging the said order, the instant appeal has been
preferred before this Court.
4. According to the appellant, the dismissal order passed by the
Family Court is unsustainable and erroneous and the same has to be set
aside. The appellant has purchased the said property from the fourth
respondent. Therefore, the respondents 1 to 3 cannot proceed as against
the appellant by executing the decree passed by the Family Court. This
aspect has not been considered by the Trial Court in proper prospective and
therefore seeks for setting aside the order of the Family Court.
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CMA.No. 1516 of 2008
5. According to the appellant, after verifying the encumbrance over
the suit schedule property from the office of the Sub-Registrar,
Perianaikenpalayam, the appellant had purchased the said property for
consideration of Rs.2,23,000/- as per registered Sale deed dated
10.12.1999 and she has been in possession of the said property from the
said date. According to the appellant, this aspect has not been discussed in
the impugned order passed by the Family Court and therefore she seeks for
setting aside the order.
6. Per contra, the learned counsel for the respondents has strongly
objected to the said contention of the appellant as contrary to the facts of
the case. In this behalf, he drew the attention of this Court to the order
dated 28.08.1998 passed in I.A.No. 16 of 1997 wherein the Family Court
has granted interim injunction, restraining the fourth respondent/husband
from alienating the suit property pending disposal of the suit O.S.No. 5 of
1995. The said order has been passed after hearing the parties concerned,
namely respondents 4 and 5. Therefore, it is apparent that the fourth
respondent has disobeyed the order of the Family Court and has executed
the sale deed in favour of the appellant, who is a third-party claimant.
Therefore there is no justification for the appellant to seek interference of
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CMA.No. 1516 of 2008
the Court for lifting the attachment order passed by the Family Court. The
Court below has consciously considered the said aspect and dismissed the
said application, which does not warrant interference.
7. Heard the parties concerned and perused the materials on record.
8. The short point involved in the present appeal is whether the
appellant is entitled for the relief as prayed for in E.A.No.2 of 2007?
9. The learned counsel for the appellant has contended that the
appellant has purchased the schedule mentioned property as per the Sale
Deed, registered as Document No. 1869 of 1999, dated 10.12.1999, SRO,
Perianaikenpalayam and she is an innocent purchaser and hence the auction
of the property in the execution petition is unsustainable.
10. On considering the fact that the Family Court has granted interim
injunction in I.A.No. 16 o 1997 on 28.08.1988, restraining the fourth
respondent from alienating the suit property pending disposal of the said
suit and further the Parties have also appeared in the aforesaid application
and contested the same and passed an order of injunction, execution of sale
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CMA.No. 1516 of 2008
deed in favour of the appellant by the fourth-respondent in respect of the
same property against which order of injunction is in vogue, is absolutely
violative the said order of Family Court. At the time of the execution of the
sale deed in favour of the appellant, injunction was in force, therefore, we
are of the view that the Family Court has rightly come to the conclusion and
dismissed the said Execution Application filed by the appellant.
11. During the pendency of the appeal, an affidavit has been filed by
the appellant stating that she agrees to pay a sum of Rs. 20,00,000/-
(Rupees Twenty Lakhs only) to the first respondent Mrs.Lakshmi within
three months (twelve weeks) from the date of swearing in of the affidavit,
that is, first day of November 2018. But according to the respondents 1 to
3, till today the appellant has not paid any amount to them.
12. In view of the above, considering the fact that an undertaking
has been given in the Affidavit filed by the appellant on 1.11.2018, we
direct the appellant to pay a sum of Rs. 20,00,000/- (Rupees Twenty Lakhs
only) together with interest at the rate of 6 % per annum from 1.11.2018
till date of payment, within a period of eight weeks from the date of receipt
of a copy of this order, failing which, it is for the respondents to proceed
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CMA.No. 1516 of 2008
with the execution petition in the manner known to law. It is reported that
the first-respondent has expired. The amount, as ordered above, shall be
deposited to the credit of E.P. No.15 of 2005 in O.S.No. 5 of 1995 on the file
of Family Curt, Coimbatore.
13. With the above directions, the Appeal stands dismissed. No costs.
(D.K.K., J.) (K.G.T., J.)
28.03.2023
Intex : Yes/No
Internet : Yes/No
mrn
To
The Family Court, Coimbatore
https://www.mhc.tn.gov.in/judis
CMA.No. 1516 of 2008
D.KRISHNAKUMAR, J.
and
K.GOVINDARAJAN THILAKAVADI , J.
(mrn)
JUDGMENT MADE IN
C.M.A.No. 1516 of 2008
28.03.2023
https://www.mhc.tn.gov.in/judis
