Madras High Court
Deivasigamani vs Marappagounder (Died) on 9 October, 2023
C.M.S.A.No.5 of 2014
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 09.10.2023
CORAM
THE HONOURABLE MR.JUSTICE M.DHANDAPANI
C.M.S.A.No.5 of 2014
And
M.P.No.1 of 2014
Deivasigamani ... Appellant
Vs.
1.Marappagounder (Died)
2.Arthanarigounder
3.Pappal
4.Velumani
5.Indira
(R3 to R5 are brought on record
as LRs of the deceased R1
viz. Marappagounder vide Court
order dated 27.09.2023 made in
CMP Nos.7287 to 7289 of 2021 in
CMSA No.5 of 2014 by PVJ) ... Respondents
Prayer:
Civil Miscellaneous Second Appeal filed under Order 21 Rule 58
r/w. Section 100 of Civil Procedure Code against the judgment and
decree dated 12.11.2013 made in C.M.A.No.14 of 2012 on the file of
the learned Sub Court, Bhavani, confirming fair and decretal order
dated 29.10.2012 made in E.A.No.190 of 2009 in E.P.No.267 of 2004
in O.S.No.200 of 1997 on the file of the learned Principal District
Munsif Court, Bhavani.
1/8
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C.M.S.A.No.5 of 2014
For Appellant : M/s.N.Manokaran
For Respondents : R1 – Died (Steps taken)
R2 – Died (Steps due)
R3 to R5 – No Appearance
JUDGMENT
This civil miscellaneous second appeal has been filed seeking to
set aside the order dated 12.11.2013 made in C.M.A.No.14 of 2012 by
the Sub Court, Bhavani.
2.The brief facts of the case is that the first respondent filed a
suit in O.S.No.200 of 1997 before the Sub Court, Bhavani, as against
the second respondent for recovery of a sum of Rs.46,860/- and also
filed I.A.No.936 of 1997 under Order 38 Rule 5 of C.P.C seeking
attachment of the petition mentioned property. The second
respondent/ defendant entered appearance in both original suit as well
as interlocutory application and since second respondent made
endorsement that he is not going to sell the petition mentioned
property, the interlocutory application was closed as unnecessary on
24.12.1997. Thereafter the suit was decreed on 12.10.2000. Without
knowing the decree, the appellant purchased the subject property
through the power agent of the second respondent on 20.06.2003.
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C.M.S.A.No.5 of 2014
3.Thereafter, the first respondent filed E.P.No.267 of 2004 for
attachment and sale of the subject property for recovery of the
decreed amount, in which the appellant filed E.A.No.190 of 2009
before the Principal District Munsif Court, Bhavani, to protect his rights
over the property. The said E.A. was dismissed on 29.10.2012 on the
ground that the alienation was made with malafide intention to deprive
the rights of the first respondent/ decree holder. Challenging the
same, the appellant filed C.M.A.No.14 of 2012 before the Sub Court,
Bhavani and the said C.M.A. was dismissed on 12.11.2013, confirming
the order dated 29.10.2012 made in E.A.No.190 of 2009. Challenging
the same, this civil miscellaneous second appeal has been filed before
this Court.
4.The learned counsel appearing for the appellant submitted that
the endorsement made by the second respondent defendant in
I.A.No.936 of 1997 was not reflected in the registration department.
In the absence of any reflection or encumbrance, the appellant being
the bonafide purchased the property from the second respondent
which is valid one. The mandatory procedure under Order 38 Rule 11b
of C.P.C. was not followed by the first respondent and hence the order
of the lower Court as well as the lower Appellate Court is perverse.
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C.M.S.A.No.5 of 2014
5.The learned counsel appearing for the appellant further
submitted that the appellant being the bonafide purchaser who
purchased the property, his rights cannot be defeated in the absence
of any restraint order. Even if there is injunction, the defendant in the
suit has to be punished for the breach of injunction and not the
bonafide purchaser.
6.In support of his contentions, the learned counsel appearing
for the appellant relied upon the decision of the Hon'ble Apex Court
reported in (2013) 5 SCC 397 [Thomson Press (India) Limited
Vs. Nanak Builders and Investors (P) Limited], the relevant
portion of which reads as follows:
“53.There is, therefore, little room for
any doubt that the transfer of the suit property
pendete lite is not void ab initio and that the
purchaser of any such property takes the
bargain subject to the rights of the plaintiff in
the pending suit. Although the above decisions
do not deal with a fact situation where the sale
deed is executed in breach of an injunction
issued by a competent Court, we do not see
any reason why the breach of any such
injunction should render the transfer whether
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C.M.S.A.No.5 of 2014
by way of an absolute sale or otherwise
ineffective. The party committing the breach
may doubtless incur the liability to be punished
for the breach committed by it but the sale by
itself may remain valid as between the parties
to the transaction subject only to any
directions which the competent Court may
issue in the suit against the vendor.”
7.Heard the learned counsel appearing for the appellant. There
is no representation for the respondents. Considering the pendancy of
the civil miscellaneous second appeal, this Court is inclined to proceed
with the case and decide the same based on the materials available on
record.
8.Admittedly, the first respondent filed a suit in O.S.No.200 of
1997 before the Sub Court, Bhavani, as against the second respondent
for recovery of a sum of Rs.46,860/- and along with that the first
respondent also filed I.A.No.936 of 1997 under Order 38 Rule 5 of
C.P.C seeking attachment of the petition mentioned property. The
second respondent/ defendant entered appearance in both original suit
as well as interlocutory application and since second respondent made
endorsement that he is not going to sell the petition mentioned
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C.M.S.A.No.5 of 2014
property, the interlocutory application was closed as unnecessary on
24.12.1997. Thereafter the suit in O.S.No.200 of 1997 was decreed
on 12.10.2000. Thereafter, the second respondent appointed one
S.R.Chandrasamy as his power agent and alienated the subject
property in favour of the appellant on 20.06.2003.
9.If the second respondent had not given any undertaking and if
the Court pass an order of attachment, then they have to comply
Order 38 Rule 11 b of C.P.C. inorder to follow the mandatory
procedure. However, in I.A.No.936 of 1997 filed by the first
respondent under Order 38 Rule 5 of C.P.C seeking attachment of the
petition mentioned property, the second respondent/ defendant had
made endorsement that he is not going to sell the petition mentioned
property and hence the interlocutory application was closed as
unnecessary. Thereafter, the second respondent appointed one
S.R.Chandrasamy as his power agent and alienated the subject
property in favour of the appellant.
10.All the facts were elaborately considered by the lower Court
as well as by the lower Appellate Court and arrived at a conclusion that
after decree was passed on 12.10.2000, the second respondent
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C.M.S.A.No.5 of 2014
appointed one S.R.Chandrasamy as his power agent and alienated the
subject property in favour of the appellant on 20.06.2003 and hence
the alienation was made with malafide intention to deprive the rights
of the first respondent/ decree holder. Both the Courts below have
rendered concurrent finding that all is not well. Hence, this civil
miscellaneous second appeal is mis-conceived and the same is liable to
be dismissed.
11.This civil miscellaneous second appeal is accordingly
dismissed. The judgment and decree dated 12.11.2013 made in
C.M.A.No.14 of 2012 by the Sub Court, Bhavani, is confirmed. No
costs. Consequently, the connected miscellaneous petition is closed.
09.10.2023
pri
Speaking Order/ Non Speaking Order
Index: Yes/ No
Internet: Yes/ No
To
1.The Sub Court, Bhavani.
M.DHANDAPANI,J.
https://www.mhc.tn.gov.in/judis
C.M.S.A.No.5 of 2014
pri
C.M.S.A.No.5 of 2014
And
M.P.No.1 of 2014
09.10.2023
https://www.mhc.tn.gov.in/judis
