Madras High Court
Pandian vs Anandan on 7 August, 2024
C.M.S.A.(MD) No.37 of 2017
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 07.08.2024
CORAM
THE HON'BLE MR.JUSTICE SUNDER MOHAN
C.M.S.A.(MD) No.37 of 2017
and
C.M.P.(MD) No.11433 of 2017
Pandian
S/o.Kaliyaperumal ... Appellant
Vs.
Anandan
S/o.Chellaiyan ... Respondent
Prayer:- Civil Miscellaneous Second Appeal filed under Section 108 read
with Order XLII of CPC, to set aside the Judgment and Decree dated
03.08.2017 made in C.M.A.No.3 of 2015 on the file of the Additional
District Court (Fast Track Court), Kumbakonam confirming the order
dated 18.08.2014 made in E.A.No.122 of 2010 in E.P.No.83 of 2009 in
O.S.No.262 of 2003 on the file of the Principal Sub Court, Kumbakonam.
For Appellant : Mr.R.Rajaraman
For Respondent : Mr.H.Lakshmi Shankar
****
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Page No. 1 of 7
C.M.S.A.(MD) No.37 of 2017
JUDGMENT
Aggrieved by the concurrent findings of the Execution Court and
the Lower Appellate Court, the Judgment Debtor has preferred the instant
Appeal.
2. The appellant had suffered a decree in money suit in O.S.No.262
of 2003. He had remained exparte before the Trial Court. There is no
challenge to the said decree. The respondent herein had filed E.P.No.83
of 2009. The appellant had filed counter affidavit and also filed E.A.No.
122 of 2010 stating that the property that was attached during the
pendency of the suit belonged to his father and therefore ought not to have
been attached and also prayed that the E.P. is liable to be dismissed. The
Execution Court, after considering the rival submissions of the respondent
and the appellant, held that the property which was earlier attached
belonged to the appellant's father who died intestate in the year 2005 and
also the appellant is entitled to 1/6th share in the said property and
therefore held that to that extent, the Execution Petition can be allowed.
3. Challenging the said order, the appellant preferred C.M.A.No.3
of 2015 before the learned Additional District Judge (Fast Track Court),
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Kumbakonam. The learned Additional District Judge after considering
the rival submissions confirmed the order of the Execution Court.
4. This Court had admitted this civil miscellaneous second appeal
on the following substantial questions of law:-
i. Whether the Judgments and decree of the courts below
are right in holding that the execution petition in E.P.No.
83 of 2009 for brings the immovable property for sale,
only on the basis of invalid order of attachment before
Judgment?
ii. Whether the Judgments and decree of the courts below
are right in holding that the petitioner is the absolute
owner for the entire property before the date of
succession open, eventhough the Petitioner born along
with brothers and sisters?
iii. Whether the Judgments and decree of the courts below
are rights in holding that the petitioner is the owner for
the entire property, even though on the day of
attachment his father is the absolute owner for the
property, after the demise of his father, on the day of
succession open the petitioner entitled 1/6 share from
the father self acquire property along with the other five
legal heirs?
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5. The learned counsel for the appellant submitted that the above
orders of the Execution Court and the Lower Appellate Court are liable to
be set aside on the sole ground that during the pendency of the suit, the
decree holder had made a false statement that the property belongs to the
appellant and obtained the order of attachment and therefore prayed for
setting aside the above orders.
6. The learned counsel for the respondent, per contra, submitted that
pursuant to the death of the appellant's father, the Execution Court and the
Lower Appellate Court found that the appellant inherited 1/6th share in the
property and therefore, the order passed by the courts below are in
accordance with law and need not to be interfered with.
7. This Court had perused the orders of the courts below ie., the trial
court and the lower appellate court and considered the submissions on
either sides. It is case of the appellant that the property was not a self-
acquired property of the appellant and therefore, the initial order passed
attaching the entire property pending suit is null and void and thus, the
orders passed by the Execution Court cannot be sustained.
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8. Even assuming that the court ought not to have attached the
property pending suit, this Court is of the view that it would not make the
order passed by the Execution Court bad in law. It is not in dispute that
the appellant inherited 1/6th share in the property which belongs to his
father. Taking into consideration of the said fact, the courts below had
passed order in the Execution Petition only in respect of 1/6th undivided
share held by the appellant and not the entire property. The order of
attachment passed pending suit had not been challenged by the appellant.
Therefore, merely because there is invalid order of attachment pending
suit, the subsequent order passed in the Execution Petition which is
accordance with law cannot be set aside. Therefore, the substantial
questions of law are answered against the appellant.
9. There is no reason to interfere with the order. Therefore, the
Judgment and Decree dated 03.08.2017 made in C.M.A.No.3 of 2015 on
the file of the Additional District Court (Fast Track Court), Kumbakonam
confirming the order dated 18.08.2014 made in E.A.No.122 of 2010 in
E.P.No.83 of 2009 in O.S.No.262 of 2003 on the file of the Principal Sub
Court, Kumbakonam is confirmed.
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10. In the result, this Civil Miscellaneous Second Appeal is
dismissed. No costs. Consequently, connected Miscellaneous Petition is
closed.
07.08.2024
Index: Yes/ No
Neutral Citation: Yes / No
Speaking Order / Non-Speaking Order
JEN
Copy To:
1.The Additional District Judge,
(Fast Track Court),
Kumbakonam.
2.The Principal Sub Judge,
Kumbakonam.
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SUNDER MOHAN, J.
JEN
and
07.08.2024
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