Dhanammal vs Thirumayammal
2023 Latest Caselaw 13598 Mad

                                                                        CRP PD(MD).No.2449 of 2023

                           BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                               DATED : 06.10.2023

                                                     CORAM

                           THE HONOURABLE MR.JUSTICE K.MURALI SHANKAR

                                        C.R.P(PD) (MD).No.2449 of 2023


                 Gopal Naicker (died)

                 1.Dhanammal

                 2.Ezhilarasi

                 3.Murugeswai

                 4.Muthumani

                 5.Senthilkumar                         :Petitioners/Petitioners/
                                                        LRs of Respondent/LRs of Defendant
                                                 Vs.


                 Thirumayammal                                    : Respondent/Respondent/
                                                                    Petitioner/Plaintiff

                 PRAYER: Civil Revision Petition is filed under Article 227 of Consiution of
                 India, to set aside the order of issuing notice to the respondent dated
                 08.06.2023 herein in I.A.No.1 of 2023 praying to raise attachment made in
                 respect of the suit property in I.A.No.355 of 1994 in O.S.No.49 of 1996 on the
                 file of the District Munsif Court, Nilakottai.
                                    For Petitioners : Mr.J.Lawrance


                 1/5
https://www.mhc.tn.gov.in/judis
                                                                        CRP PD(MD).No.2449 of 2023

                                                    ORDER

The Civil Revision Petition is directed against the order of issuing

notice to the respondent, dated 08.06.2023 in I.A.No.1 of 2023 in I.A.No.355

of 1994 in O.S.No.49 of 1996 on the file of the District Munsif Court,

Nilakottai.

2. It is evident from the records that the respondent has filed a suit in

O.S.No.439 of 1994 on the file of the Principal Sub Court, Dindigul against

one Gopal Naicker, wife of the 1st petitioner and father of the petitioners 2 to 5

to recover money due on the promissory note and also filed an application in

I.A.No.355 of 1994 for attachment of the defendant's property before

judgment and the attachment before judgment was ordered on 14.06.1994 and

the said attachment was entered in the Sub Registrar Office, Dindigul District;

that thereafter, the suit was transferred to the file of the District Munsif Court,

Nilakottai and renumbered as O.S.No.49 of 1996 and that subsequently, the

suit was ordered to be dismissed as settled out of Court on 22.10.1996.

3. The case of the petitioners is that the said Gopal Naicker died in the

year 2005 and they have not taken any steps to raise the attachment, that when

the petitioners were taking steps to partition their properties, they came to

https://www.mhc.tn.gov.in/judis CRP PD(MD).No.2449 of 2023

know about the entry of attachment and that therefore, they were constrained

to file an application in I.A.No.1 of 2023 under Order XXXVIII Rule 9

C.P.C., seeking orders to raise attachment made in respect of the property in

I.A.No.355 of 1994 and that the learned District Munsif instead of allowing

the application, has ordered notice to the respondent.

4. The learned counsel for the petitioners would submit that the suit

itself was dismissed as settled out of Court; that the respondent/plaintiff

cannot have any say or objection to raise the attachment and that the

attachment shall be deemed to be withdrawn and as such, no notice is required

to be issued to the respondent/plaintiff.

5. It is evident from the records that since the parties have entered into

settlement out side the Court, recording the same, the suit was ordered to be

dismissed as settled out of Court and the Court fee paid on the plaint was

ordered to be returned to the plaintiff. Since there is no enforceable decree, the

question of retaining the attachment does not arise. Moreover, the suit was

dismissed as early as on 22.10.1996.

https://www.mhc.tn.gov.in/judis CRP PD(MD).No.2449 of 2023

6. Considering the above, the order of the learned District Munsif in

issuing notice to the respondent is not warranted and as such, the same is

liable to be set aside.

7. In the result, the Civil Revision is allowed and the order of issuance

of notice to the respondent/plaintiff in I.A.No.1 of 2023 in I.A.No.355 of 1994

in O.S.No.49 of 1996 on the file of the District Munsif Court, Nilakottai, is set

aside. No costs. Consequently, connected Miscellaneous Petition is closed.

06.10.2023

NCC : Yes/No Index : Yes/No Internet : Yes/No das

To

1.The District Munsif Judge, Nilakottai.

2.The Section Officer, VR Section, Madurai Bench of Madras High Court, Madurai.

https://www.mhc.tn.gov.in/judis CRP PD(MD).No.2449 of 2023

K.MURALI SHANKAR, J.

das

C.R.P(PD) (MD).No.2449 of 2023

06.10.2023

https://www.mhc.tn.gov.in/judis